Order 4

Order Details: Other
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT NO.32
IN
EXECUTION APPLICATION NO. 03 OF 2020
IN
CASE NO.CC/III/41 OF 2011
(On the file of Co-operative Court No. III, Mumbai)
Mr. B. S. Rath ... Decree Holder/ Org. Disputant
Versus
The Jai Ganesh CHS Ltd. Ganesh Bhavan
Thru its Secretary Anthony Rodricks
...Judgment Debtors/org Opponents
CORAM : HIS HONOUR SHRI A.K.KALE.
Adhoc Judge,City Civil Court and
Additional Sessions Judge,
Mumbai.
(C.R. NO.63).
DATE : 25-03-2026.
Ms. Joyce S. Rath, Advocate for the Decree Holder.
Smt.Snehal Marathe, Advocate for the Judgment Debtors.
ORDER
1. This is a praecipe taken out by the Decree-Holder to
uphold the constitutional rights of the Decree-Holder in view of the
Judgment Debtors fresh commission of criminal act under section 321
of the BNS 2023.
2. It is submitted that, the Judgment Debtor Secretary
Anthony Rodricks had taken disadvantage of the undue delay in passing
order on Exhibit 25 and Exhibit 29 by abusing the process of an
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Execution Court and conducting it like a Trial Court. The perjury prone
chronic defaulter Judgment Debtors Anthony Rodricks had embarked
on a fresh criminal act punishable under section 321 of the BNS 2023 to
be commissioned on 26-03-2026 as evidenced from his Notice under
his signature dtd. 21-03-2026 dishonestly and fraudulently preventing
debt being available for creditors. This provisions punishes transferring
hiding or removing property to avoid repayment, punishable by up to
two years in prison, a fine or both. In the instant case debt of
Rs.26,00,000/- plus by siphoning out members contributions from the
“Sinking Fund” under guise of repairs to declare the society as “
Bankrupt”/ “Insolvent”.
3. It is further submitted that, the Judgment Debtor have
already siphoned out General Body’s contributions from the Repair
Fund to the tune of Rs.57,59,505/- which is evidence in the
Chargesheet of the Government Investigating Agencies maintained by
this Court in its records Mrs. Meghna.B. Thakur , Mr. Shrikant V. Shenoy,
Mr. Madhav S. Triodkar, Mr. Sunil D. Dalvi, Mr. Jaideep Mitra, Mrs.
Yamuna Prabhu are charge-sheeted . The Ld. Predecessor of this court
issued notice against the Judgment Debtor under Order XXI Rule 37 of
the CPC. The Judgment Debtor is now dipping illegally and
fraudulently into the Sinking Fund to declare the society as Bankrupt
under the guise of Repairs too late by seven years, given the Current
condition of the subject deterioration of the RCC structure of the society
building which is beyond repairs as evidenced from the photographs.
4. It is further submitted that, holding of the Special General
Body Meeting on Thursday 26-03-2026 on the terrace of the building,
entry by last staircase of the society compound only with a caveat, is not
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clandestine in its inherent nature to sanction the writing off of the
interest on the bail amount of charge-sheeted Mrs. Meghana Thakur by
relying on a Bye-Law 15(a) is not only an act of fraud by the Judgment
Debtor Anthony Rodricks but rewarding the criminal and abusing the
constitutional rights of the Decree-Holder and 25 members of the
General Body. The Judgment Debtor Anthony Rodricks on a
personal/self-styled Resolution has filed a bogus WPL/747/2020 on 5-
03-2020 to obstruct the Government Investigating Agencies from
recovery and restoration of the contributions of the General Body to the
Repair Fund to the tune of Rs.57,09,505/- from the six charge-sheeted
Judgment Debtors. It is further submitted that, it is imperative that,
this Execution Court upholds the Constitutional Rights of the Decree-
Holder and the General body, by exercising its inherent powers to issue
injunctions on the Judgment Debtor on notice of commission of
criminal act and pass an expeditious order of injunction against
siphoning out any amount from the Sinking Fund and to allow the
Government Agencies to recover and restore the contributions of the
General Body to the Repair Fund.
5. The Decree-Holder further filed pursis Exhibit-33 and
submitted that the Judgment Debtor Anthony Rodricks has already
engaged some blacklisted civil contractor M/s. M. A.Chavan and
started certain repair works despite order of the Cooperative Court. By
the letter dtd.03-01-2026 all the members of the General Body have
raised their objections to the proposed repairs since the building is
about 65 years old and any repairs will not fetch any additional life
improvements of the said building, instead the society should go for
redevelopment of the society building. It is also stated that, the adjacent
Uma Shankar Society and Chawl are already for redevelopment and
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that the property card matter can be resolved by the appointed Builder
shelling of any money. It is seen from the photographs that any attempt
to reinstate the RCC structure of the building by repairs in the present
year of 2026, will result in collapsing of the entire building. Hence, it is
imperative that an order of injunction and stay on any repairs to the
fragile RCC structure be issued forthwith to avert a fatal mishap by the
Judgment Debtors. The resolution of the Judgment Debtor is the notice
of Special General Body Meeting is a criminal offence punishable under
section 321 of BNS 2023 to declare the society Bankrupt/ Insolvent.
With regard to Agenda point 4, the Judgment Debtor Secretary will be
committing an offence and liable for punishment under section 145 to
148A of the MCS Act to write off the interest amount due and payable
by Charge sheeted Mrs. Meghna Thakur. It is further prayed to issue
injunction against the Secretary of Judgment Debtor.
6. Perused praecipe, record and heard both the sides.
7. By the said praecipe the Decree-Holder seeking for passing
the order of injunction against the siphoning out any amount from the
Sinking Fund. As per the Decree-Holder, the Judgment Debtor have
already siphoned out General Body contribution form the repair fund to
tune of Rs.25,59,505/- only. The Judgment Debtor now dipping
illegally and fraudulently into the Sinking Fund to declare the society as
Bankrupt under the guise of Repairs. Therefore, as per Decree-Holder
they are necessary to be restrained. The Decree-Holder filed copy of
notice of General Body meeting dtd.21-03-2016. It is a notice issued by
the Secretary to the members of the society in respect of the meeting to
be held on 26-03-2026 at 5.30 p.m. The agenda of the meeting is to
finalized the costs of repairs of the society as per BMC Notice, to
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finalize the Contractor for repairs, to pass the resolution to use Sinking
Fund of the society for repairs, to sanction the writing off of the interest
on the bail amount of Mrs. Meghana Thakur according to Co-operative
Housing Society Limited, By -Law 150(a). The Judgment Debtor
opposed the praecipe on the ground that the praecipe is not
maintainable because the business of the General Body Meeting is to be
challenged before the Co-operative Court. Therefore, this court has no
jurisdiction. She further challenged the praecipe on the ground that the
applications should be in the form of Notice of Motion or Chamber
Summons as per provisions of Bombay City Civil Court Rules. She
relied upon the provisions of section 91 and 163 of the Maharashtra
Co-operative Societies Act, 1960. She relied upon the judgment of the
Hon’ble High Court in the case of Anandrao Vithoba Pawar V/s.
Mumbai Building Repair and Reconstruction Board and others in Writ
Petition No. 9357 of 2013 dtd. 19-10-2013.
8. Against the said submission, the Ld. Counsel for the
Decree-Holder submitted pursis Exhibit-34. It is submitted that by
Exhibit-25 the Decree-Holder seeking issuance of direction to the
Judgment Debtor to make a complete disclosure of assets movable and
immovable assets of the Judgment Debtor Society which is very essence
of the Execution Proceedings. The Judgment Debtor is legally bound to
make a compete disclosure of the proceedings initiated by him for
repairs and redevelopment to the immovable asset of the Judgment
Debtor society building. Meaning of the legal term of ‘praecipe’ is
writing request to initiate a court action or process, when addressed to
the Judge, a praecipe is similar to a motion which does not require a
verification clause since the fundamental fact remains that the Decree-
Holder’s Award is valid and executable till today. A praecipe in
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Execution Proceedings is used in order to motion a Judge either in court
or in Chamber in order to seek urgent ad-interim reliefs. The case law
relied by the Judgment Debtor is in respect of the L.C. Suit seeking
amendments as plaintiffs is the subject matter and not remotely related
to Execution of Decree and procedures thereby intentionally causing an
interruption at the stage of interim relief. Only an order of the Supreme
Court staying of the subject Execution Proceedings would have been
relevant from issuing ad-interim reliefs on Exhibit-32. The procedure of
Execution Court is clearly and succinctly set out in Supreme Court order
in Rahul H. Shah V/s. Jitendra Kumar Gandhi and others, (2021) 6 SCC
418. It is therefore, prayed to issue a order of injunction.
9. The Decree-Holder filed another documents i.e. copy of
letter issued by the members of the society to the Chairman/ Secretary
of the society dtd. 03-01-2026. The subject of the letter is about repair
of building. The members have communicated through this letter that
they are not in agreement with the proposed repairs of the building.
Since the building is about 65 years old, the repairs will not fetch
additional life improvements in the said building. The members
therefore, requested to go for redevelopment instead of repairs. The
praecipe for injunction is filed by the Decree-Holder on the ground that
there is a meeting of society to be held on 26-03-2026 to finalize the
costs of repairs and Contractor to be appointed for the repairs etc. As
per the Decree-Holder, this court is having inherent power to grant
injunction on noticing of the criminal act. As per Decree-Holder, the
Secretary by the said means dishonestly and fraudulently preventing
debt being available for creditors. The Judgment Debtor is now dipping
illegally and fraudulently into the Sinking Fund to declare the society
as Bankrupt/Insolvent.
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10. No specific provision has been mentioned by the Decree-
Holder as to under what provision the praecipe is filed. There are
various provision under Order 21 to execute decree. As per the Decree-
Holder this court is having inherent power. Means the powers under
section 151 of CPC. It is true that this court is having power under
section 151 of CPC to pass order in the interest of justice. The present
proceeding is an Execution Proceedings in respect of the decree of Co-
operative Court passed on 13-02-2019. The Co-operative Court thereby
declared Demand Notice and proceeding dtd. 02-03-2011 Awarding
structure repair contract to M/s. M.A. Chavan is bad in law and is not
binding to the plaintiffs. By the decree it is directed to the Judgment
Debtor society to carry out repairs of Decree-Holder flat at the cost of
society. It was also directed to provide alternate accommodation to the
Decree-Holder for the purpose of repairs and also directed to provide
shifting costs to the Decree-Holder to alternate accommodation. The
society also directed to pay costs of Architect Fees Rs.15,000/-, Engineer
Fees Rs. 11,800/- Pipeline repair chages Rs. 16,015/- which total of
Rs.30,887/-. During the pendency of the Execution Petition an
application Exhibit -15 was filed by the Decree Holder for directing the
Judgment Debtor to provide charges of alternate accommodation. The
said application was allowed and it was directed to the Judgment
Debtor to pay Rs.9,09,287/- to the Decree-Holder which includes
charges of Rs.30,887/- which was granted towards costs of Architect
etc. The said order has been challenged by the Judgment Debtor by way
of Writ Petition before the Hon’ble High Court. The Hon’ble High Court
ordered that no coercive steps shall be taken for recovery of amount of
Rs.9,09,287/- under the impugned order from the society until Writ
Petition is heard and decided. So the said aspect of recovery of amount
is subjudice before the Hon’ble High Court . The Hon’ble High Court
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also directed the society to file the undertaking that they shall deposit
any such amount with court within stipulated by the court on hearing
of petition. Accordingly, undertaking has been submitted by the
Judgment Debtor before the Hon’ble High Court.
11. As discussed above, the decree is in respect of repair of flat
of Decree-Holder. By the present praecipe the Decree-Holder seeking for
injunction restraining the society from passing resolution as per notice
dtd.21-03-2026. By the said notice General Body Meeting is called for
the agenda to finalize the cost of repairs of the society and to finalize
the Contractor and to use the fund for repairs. As discussed above in
respect of the recovery of amount under the decree the matter is
subjudice before the Hon’ble High Court in Writ Petition. It is seen that
the meeting is being called for finalized the repairs of the entire society
building and not only for respective flat under the decree. It is seen
from the praecipe Exhibit-32 and 33 that the Decree-Holder has
submitted that any attempt to reinstate the RCC structure of the
building by repairs will result in collapsing of the entire building. It is
seen that, the agenda is in respect of the entire building. As per copy of
letter the members are against the repairs. It is for the members of
society to take decision in respect of the entire building and any
grievance if having by the members they will have to discuss and
resolve the issue or they may take appropriate action as per letter
against the committee of the society. The subject of the society functions
cannot be looked into and controlled by this court. The decree is not in
respect of the entire building. If the members are having any grievance
they have to take appropriate steps before the appropriate forum.
Though this court is having inherent power under section 151 of the
CPC, considering all the above discussed aspect in my view no case is
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made out to grant relief under section 151 of CPC. Therefore, prayer for
injunction as sought by the Decree-Holder by the praecipe deserves to
be rejected. Hence, I proceed to pass following order:
-ORDER-
1. Praecipe (Exhibit-32) is hereby rejected.
2. The Praecipe (Exhibit-32) disposed off accordingly.
(A.K.Kale)
Ad-Hoc Judge
City Civil Court,
Date : 25-03-2026 Gr. Bombay.
Dictated on : 25-03-2026
Typed on : 25-03-2026
Checked on : 26-03-2026
Signed on : 27-03-2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
1.33 p.m. K.M.Rana
Name of the Judge (with Court Room
no.63)
HHJ Shri A.K.KALE
(Court Room No.63).
Date of Pronouncement of Judgment/Order 25-03-2026
Judgment/Order signed by P.O. on 27-03-2026
Judgment/Order uploaded on 27-03-2026
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