Sheela Anant Chavan And 2 ORS. v. Manohar Shankarrao Chavan And 4 ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2201 OF 2011 IN SUIT NO.1489 OF 2006 Sheela Anant Chavan And 2 Ors.

...Plaintiffs vs Manohar Shankarrao Chavan And 4 Ors.

...Defendants .....

Mr. Ashutosh Kumbhakoni, Senior Advocate, i/b. E.A. Sasi, for the Plaintiffs.

Mr. Tushar Dahibawkar, i/b. Mrs. S.A. Dhamale, for the Defendants. ....

CORAM : S.C. GUPTE, J.

DATED : JANUARY 12, 2016 P.C. :

.

This Motion seeks appointment of a Court Receiver in respect of 15 shops/galas situated on the ground floor of Padmavati building at Survey No.45, Hissa No.2, CTS No.317 at Goregaon West, Mumbai. These shops are part of the suit property, where Defendant Nos.4 and 5 are running a hospital under the name and style of "Shri Sai Clinic" and "Shri Sai Medical & General Stores". The application is on the footing that the entire suit property, together with these 15 shops/galas, belong to the HUF of the Plaintiffs and Defendants and not the property of Defendant Nos. 4 and 5. The suit is filed for declaration of the character of the suit property as a HUF property and for partition of the same on that footing. Earlier, same relief was claimed by the Plaintiff in Notice of Motion No.313 of 2008 filed in the present suit. Whereas Receiver was appointed by this Court on Pg 1 of 3

that Notice of Motion in respect of other portions of the suit property, this Court refused to appoint Court Receiver in respect of 15 shops/galas, which form part of the present Notice of Motion. The refusal was on the footing that these shops were purchased by Defendant No.4 - five shops in 1988, five in 2000 and five in 2005. This Court noted that, out of fifteen documents produced in that behalf, ten were stated to be registered. Considering the fact that there were documents in favour of Defendant No.4, who was a doctor and was conducting his clinic in the premises, this Court was of the view that, prima facie, no case for appointment of a Court Receiver was made out in the facts of the case.

The Plaintiffs, after the disposal of their earlier motion, have taken out the present Notice of Motion in the year 2011 alleging, inter alia, that the Defendants had earlier avoided to furnish copies of the documents in respect of these 15 shops; that, in September 2008, the Plaintiffs applied to the Municipal Corporation of Greater Mumbai under the Right to Information Act seeking information and copies of these documents; that upon receipt of these documents from the Corporation in pursuance of the application, it was revealed that the Defendants had submitted copies of agreements only in respect of ten shops; and that these documents were false and fabricated and there were serious lacuna in the documents. 2.

In reply, it is pointed out by the Defendants that the documents claimed to be received from the Corporation under an RTI query, on the basis of which the present Notice of Motion is taken out, were procured by the Plaintiffs as far back as in 2005-2006. The Defendants have referred to these facts in para 7 of their affidavit-in-reply. The Defendants have also produced copies of the Plaintiffs' application under the RTI Act to the Municipal Corporation and the Municipal Corporation's response thereto, Pg 2 of 3

and receipt of fees paid by the Plaintiffs for obtaining these documents. The Plaintiffs have not dealt with these aspects in their rejoinder. 3.

The emerging position, therefore, is this : On the basis of documents produced by the Defendants before this Court in 2008, on which the Defendants continue to rely even in these proceedings, this Court had rejected the Plaintiffs' application for appointment of Receiver in respect of these 15 shops/galas. The documents, which are said to have become available to the Plaintiffs after that order, were already in possession of the Plaintiffs when that earlier order was passed and this fact is not even controverted by them in their pleadings. Even on the Plaintiffs' own showing, these documents became available to the Plaintiffs in 2008 (though the record indicates that they were available in 2006). There is no explanation why even after availability of these documents, the Plaintiffs waited for three years to move the present Notice of Motion. 4.

In the premises, there is no merit in the present Notice of Motion. The same is dismissed. No order as to costs. ( S.C. GUPTE, J. ) Pg 3 of 3