Smt. Kusum Venkatesh Shet Dispute No.CC/III/166/2010VsSmt. Kalpana Umesh Kerkar and Nishigandh Sahaniwas CHS. Ltd.,and Ors.

Date: 21-12-2018
Business: Ms.Shobha Shet, Advocate for Decree Holder present.  Decree sought to be executed is transfer decree, Ms.Shet agrees for issue of notice before execution.  Hence, issue notice before execution, returnable on 19/01/2019.  On request of Ms.Shet, short service by Humdast is allowed.
Next Purpose: FOR___________________
Next Hearing Date: 19-01-2019

Date: 19-01-2019
Business: Ms. Seth for decree holder in person present.
Adv. Mr. Pophale for J/ D present.
Documents tendered by D/H. t.o.r .
Documents tendered by J/D. t.o.r.
Matter is adjd. to 28.01.2019 for hearing.
Next Purpose: HEARING
Next Hearing Date: 28-01-2019

Date: 28-01-2019
Business: Decree holder/Plaintiff in person present.
None present for J/D.
Partly heard arguments.
KB at 2.45p.m.
LO at 2.45p.m.
Decree holder in person present.
Adv. Mr. Ashok Pophale for J/D present.
Heard arguments of decree holder.
Heard arguments.
Matter is adjd. to 11.02.2019 for orders.
Next Purpose: ORDER
Next Hearing Date: 11-02-2019

Date: 11-02-2019
Business: Adv. Ms. Shobha Shet decree holder in person present.
Adv. Mr. Pophale for Defendant present.
Heard arguments.
KB at 4.00p.m. on request of J/D
LO at 4.00p.m.
Same appearance.
Undertaking tendered by Mr. K.P.P Nair, the Chairman of Judgment Debtor  no. 1. t.o.r O-Accepted.
Matter is adjd. to 1.03.2019 for compliance as per undertaking/ orders.
Next Purpose: COMPLIANCE
Next Hearing Date: 26-02-2019

Date: 26-02-2019
Business: Mentioned by precipe.
NOB TOB
The Judgment debtor no. 2 Mr. K. P. P. Nair is present.
Exh. 3  Affidavit of Mr. K. P. P. Nair. O-R and R.
He undertakes to supply/serve copy of affidavit on decree holders.
Adjd for compliance of order/ undertaking to 1.03.2019
Next Purpose: COMPLIANCE
Next Hearing Date: 01-03-2019

Date: 01-03-2019
Business: Resumed.
Adv. Shobha Sheth for DH is present.  None for JD.
Adv. Sheth submits that the Ld. Predecessor has heard matter at length and the matter kept for compliance and orders and therefore, she would take necessary steps today before the Hon\''ble Principal Judge to get the matter transfered before the same Judge.
Kept back
L.O. at 3.55 p.m. Adv. Sheth for DH submits that she had filed application before the Hon\''ble Principal Judge and the matter is kept for hearing on 08.03.2019.  Adv. Sheth also tendered reply to the affidavit dtd. 25.02.2019.  Copy served on Adv. Pophale.
Adv. Ashok Pophale for JD is present.
Adjd for taking steps to 08.03.2019.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 08-03-2019

Date: 08-03-2019
Business: Resumed.
Adv. Shobha Sheth for DH and Adv. Ashok Pophale for JD are present.
Exh.  4 - The reply of DH dtd. 01.03.2019.
Adv. Pophale tendered affidavit in reply to which Adv. Sheth raised objection.  However, as such there is no stay to the proceeding before this Court even though an application for transfer has been moved by the DH. Taking the affidavit in reply on record will not affect the merits of the case.
Exh. 5  - Affidavit in reply to Exh. 4. O- R and R.
Adjd for steps to 11.03.2019.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 11-03-2019

Date: 11-03-2019
Business: Resumed.
DH in person and Adv. Ashok Pophale for JD are presnt.
DH submits that the Hon\''ble P.J. has kept the matter for orders today.
Adjd for directions to 12.03.2019.
Next Purpose: DIRECTIONS
Next Hearing Date: 12-03-2019

Date: 12-03-2019
Business: Resumed.
DH in person is present.  None for JD.
The DH submitted that the Hon\''ble Principal Judge has transferred the matter to C. R. no. 40.
Adjd for directions to 13.03.2019.
Next Purpose: DIRECTIONS
Next Hearing Date: 15-05-2019

Date: 15-05-2019
Business: Decree holder in person present.
Adv Mr. Pophale for Judgment debtor is present.
D/H has submitted that yesterday the work has completed.
Matter is adjd to 19.06.2019 for compliance report from the J/D alongwith report of structural engineer/ warranty contract.
Authenticated copy of roznama be supplied to both parties.
Next Purpose: COMPLIANCE
Next Hearing Date: 19-06-2019

Date: 19-06-2019
Business: Decree holder in person present.
Adv. Pophale for J/D present.
Application tendered by Decree holder. t.o.r. Other side to say.
J/D is directed to submit report of structural engineer alongwith warranty contract.
Matter is adjd. to 21.06.2019 for report/ say to Exh. At 11.00a.m.
Next Purpose: REPORT
Next Hearing Date: 21-06-2019

Date: 21-06-2019
Business: Decree holder present.
Adv. Pophale for Defendant present.
Email of structural engineer tendered by J/D. t.o.r.
Reply tendered by J/D no. 1. t.o.r.
Report received by J/D from structural engineer tendered by J.D no. 1. t.o.r.
It seems from Roznama dtd 15.05.2019 that decree holder submitted before the court that on 14.05.2019, the work was completed. It appears that J/D today has filed on record structural engineer report received by J/D no. 1 on 8.06.2019. It reveals that structural engineer has mentioned in his report that work has been completed as per their guidance. Thus, it appears that decree has been executed by J/D.
It is submitted by decree holder that order has not been executed in view of subsequent developments as mentioned in the present application dtd 19.06.2019. Beem in question has not been repaired. Further she has submitted that warranty contract has also not been tendered by J/D.
Basically being executing court, it is for this court to observe whether compliance of order under execution has done or not. It appears from roznama dtd 17.05.2019, there was submissions by the decree holder regarding completion of the work, in view of order under execution. Admittedly building is old one.
Decree holder seeks adjournment for further arguments in her exh. 7 application. Hence, matter be kept at 1.45p.m. with consent of the decree holder.
LO at 1.45p.m.
Heard decree holder on exh. 7 and J/D no. 1 and advocate for J/D No. 1.
J/D No. 1 has stated that there is no warranty contract executed between J/D and contractor.
Structural engineer is directed to remain present before the court on the next date without fail alongwith his report.
Matter is adjd. to 25.06.2019 for passing order below exh. 7/ report to his court by structural engineer.
Next Purpose: REPORT
Next Hearing Date: 25-06-2019

Date: 25-06-2019
Business: Adv. Pofale for J.D. present
J.D. no. 1 present.
Decree holder absent.
Structural Engineer Chetan Tolia present.
K.B. at 04.00 pm.
L.O. at 4.00 pm.
Decree holder in person present.
Adv. Pofale for J.D. present
J.D. no. 1 present.
Structural Engineer Chetan Tolia present.
Representative of contractor Wasim Khan is present who carried out repairs work in the flat of decree holder.
Registered Structural Engineer Mr. Chetan Tolia has tendered compliance report. T.O.R. R and R. After perusal of report it appears that as per the order of the co-operative court dtd. 12.12.2014 Judgment Debtor Society has completed repairs work under the supervision of Structural Engineer Mr. Chetan Tolia. Structural Engineer Chetan Tolia has made statement before the court that, now there is no leakage or cracks in the beams and columns in the flat of decree holder. Under his supervision the work has been done. His statement is accepted.
Application tendered by decree holder for seeking order due to non compliance of order dated 15.05.2019 by Judgment Debtor
Heard decree holder.
Heard advocate for J.D. He has submitted that there is no warranty contract executed between the contractor and the society. There is no written contract. Further, on 15/05/2019 the court has not directed specifically to file on record warranty contract but it was directed to  J.D. if there is any warranty contract then produce it before the court. Considering the above submissions this application is disposed of.
Decree Holder who is present before the court has prayed for awarding costs of Rs. 10,000/- while disposing this Execution Application in view of  in ordinate delay in compliance of the order dated 12.12.2014. First I would like to mention that, Structural Engineers report and his statement is leads me to accept that in view of order dated 12.12.2014 J.D. has made compliance in TOTO. Thus, order under execution has been satisfactorily complied with. So far as imposing cost for delay is concerned, decree holder has pointed out para no.359 of Civil Manual. Besides Ld. Advocate for J.D. has submitted that Co operative court had no jurisdiction and executing court has jurisdiction to decide said jurisdictional issue. It appears from Record and proceedings that order passed by the Co-operative court dated 12/12/2014 has been confirmed by the Hon\''ble H.C. on 14/12/2017 by dismissing Writ Petition No. 7245/16 filed by J.D. society. Therefore, submissions on behalf of J.D. are not acceptable on the point of raising jurisdiction issue again. In the facts and circumstances, considering point of delay in execution I am of the opinion to impose cost of Rs. 501/- upon J.D. Thus, this Execution Application is to be disposed of in view of satisfaction of the order dtd. 12/12/2014 by J.D. with this I proceed to pass the following order
                                           ORDER
Darkhasth/Execution Application No.597/2018 is hereby disposed of accordingly, and endorsement  be made on the copy of the order regarding full satisfaction of order dated 12.12.2014.
J.D is directed to pay costs of Rs.501/- to Decree holder against delay caused in the execution.
After passing order immediately, J/D has paid cost of Rs.501/- to the Decree Holder.
Nature Of Disposal: OTHERWISE
Disposal Date: 25-06-2019

TRANSFER APPL/100060/2019

Registration Number: 100597/2018
Transfer Date: 19-01-2019
From Court: 966 - IC REGISTRAR CITY CIVIL COURT MUMBAI
To Court: 1 - COURT 01 ADDL SESSIONS JUDGE

Registration Number: 100597/2018
Transfer Date: 13-03-2019
From Court: 1 - COURT 01 ADDL SESSIONS JUDGE
To Court: 40 -

Registration Number: 100597/2018
Transfer Date: 19-06-2019
From Court: 40 -
To Court: 12 - COURT 12  ADDL SESSIONS JUDGE

Filing Number: 116905/2018
Filing Date: 21-12-2018
First Hearing Date: 21st December 2018
Decision Date: 25th June 2019
Court Number And Judge: 12-COURT 12  ADDL SESSIONS JUDGE