Bombay High Court
Parvez Soli Irani vs Naresh Ramchandra Patil (Deceased) ... on 22 January, 2020
Author: A.K.Menon
Bench: A.K. Menon
908.ia-1-19(sl-1377-19)(U).odt
sbw IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1 OF 2019
IN
SUIT (L) NO.1377 OF 2019
Parvez Soli Irani .. Plaintiff
Vs.
Naresh Ramchandra Patil
(since deceased) through LRs .. Defendants
Mr. Vishal Kanade i/b. Salik Khan for the plaintiff.
None for the defendants.
CORAM : A.K. MENON, J.
DATED : 22ND JANUARY, 2020.
P.C. :
Called for ad-interim relief.
1. The suit is filed under Section 6 of the Specific Relief Act for recovery of possession of immovable property which was forcefully taken from the plaintiff. None of the defendants or the constituted attorney are present on call.
2. This matter was first mentioned on 14 th January, 2020 on which date the Advocate for the plaintiff sought exparte reliefs. He was directed to give notice to the defendants which has since been issued. An affidavit of service dated 21st January, 2020 has been tendered today. The 1/7 ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 01:09:23 :::
908.ia-1-19(sl-1377-19)(U).odt affidavit of service clearly indicates that the notice has been issued to the defendants as also to their constituted attorney Nagraj Kashi Devendra. The tracking report indicates that the postal cover addressed to Nagraj Kashi Devendra has been delivered as seen from Exhibit F and G.
3. The affidavit of service also indicates that the aforesaid Nagraj Kashi Devendra, C.A. filed the Caveat Application in the City Civil Court, Mumbai. In addition during the course of submission, the plaintiff was called upon to confirm that he had no dealings with the said persons after the demise of his late uncle. The plaintiff has confirms the same through his counsel. Statement is accepted.
4. The brief facts are as follows;
The plaintiff is stated to be the beneficiary under a Will of one Homi J. Irani which is subject matter of probate granted by this Court on 14 th November, 2014. The plaintiff claims under the said Will and which specifically provides in clause no.(3) that upon the demise of the testator, the properties described in clause no.(2) it includes a suit plot of land will vest in the plaintiff, the residual estate is also bequeathed to the plaintiff along with other immovable and movable property.
5. The plaint sets out the devolution of title of the late Homi Irani inasmuch as the late Homi Irani acquired ownership rights and 2/7 ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 01:09:23 :::
908.ia-1-19(sl-1377-19)(U).odt possession of the suit plot of land under a registered Deed of Conveyance dated 12th June, 2002 between defendant nos.1 to 8 and the said Irani with M/s. Orbit Ventures as a confirming party. The operative portion of the Deed of Conveyance sets out the fact that the property was conveyed to the said Irani for his use and benefit. The document is seen to be registered with the Sub-Registrar of Assurance, Bandra, Mumbai under document no.4418 of 2002.
6. It is the case of the plaintiff and as canvassed by Mr. Kanade, that late Homi Irani was an enjoyment of the said property and had constructed a structure thereon pursuant to the plan sanctioned by the Mumbai Municipal Corporation and in pursuance of the MRTP Act. A commencement certificate was issued on 3 rd August, 2002 to construct a proposed building on the suit plot of land. Late Homi Irani is said to be in the business of horticulture and was also running a nursery at the said address. Ever since the present plaintiff took charge of the property, he has been continuing business in the name and style of Parvez Irani Horticulturist as evident from the certificate of registration under the Maharashtra Value Added Tax Act, 2002. The address of the business is also shown as that of the suit property as can be seen from Exhibit H. It is contended that while in possession of the suit property, on or about 15 th November, 2019 at about 2.30 p.m. the plaintiff received a phone call from the caretaker at the premises 3/7 ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 01:09:23 :::
908.ia-1-19(sl-1377-19)(U).odt informing him that numerous people had forcibly entered the property and were destroying the Nursery.
7. In view of the aforesaid act of trespassers the employees left the premises and called the plaintiff to inform him about the developments. The plaintiff thereupon is said to have contacted the police authorities on the helpline. The plaint in paragraph 22 narrates these course of events. A paroling police car had come by but did not take any action against the trespassers but called the two workers of the plaintiff to the MHB colony police station. The plaintiff was then called to attend the police station. At the police station, the gentleman Nagraj is said to have met with the plaintiff. The said Nagraj is said to have accompanied by an Advocate and when the plaintiff informed the said persons that he was the owner of the property by virtue of the aforesaid conveyance and probate, they paid no heed and contended that if the plaintiffs desires he can approach the Court of law. He was therefore forced to leave the premises and thereafter approached this Court.
8. Mr. Kanade relies upon a copy of a police complaint dated 26 th November, 2019 made by the plaintiffs Advocate to the Senior Police Inspector, MHB Colony Police Station which was sent by registered post on the same day. There is an acknowledgment of the police 4/7 ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 01:09:23 :::
908.ia-1-19(sl-1377-19)(U).odt station which was also placed on record as part of Exhibit Q. The plaintiffs have also relied upon the several bills issued by the Municipal Corporation for property taxes and water charges, licence issued under the Bombay Shops & Establishment Act to the original owner-the late Homi Irani, as also the licence which was since issued to the plaintiff at the very suit property annexed as Exhibit F & G. In addition, the plaintiff has relied upon the electricity bills issued by Adani Electricity in the name of late Homi Irani. The fact that Homi Irani was in possession and was running the said Nursery cannot be in doubt. Subsequently, it appears that the plaintiff had taken charge of the property and is entitled to retain the property pursuant to the probate granted by this Court and prima facie appears that he has been operating the said nursery and horticulture business since he has already been issued a licence under the Shops & Establishment Act in his name, the certificate of registration under the Shops and Establishment Act as well as the Maharashtra Value Added Tax Act which are seen to be issued to the plaintiff at the very suit premises. The learned counsel for the plaintiff seeks relief in terms of prayer clauses (a) and (b). Prima facie case has been made out for grant of ad- interim relief and hence I pass the following order;
(i) There will be an ad-interim order in terms of prayer clause (b) which is reproduced below;
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908.ia-1-19(sl-1377-19)(U).odt
(b) that pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay or some other fit and proper person be appointed the Receiver in respect of suit property Exhibit A hereto with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the power to take physical possession thereof by removing therefrom defendants or any persons claiming through them and power to appoint agent and further appoint the plaintiffs as an Agent of the Court Receiver without any royalty and charges."
(ii) Till the Receiver takes possession there will be an ad-interim order in terms of prayer clause (a) which reads as follows;
(a) that pending hearing and final disposal of the suit, the defendants themselves, their servants and agents and any person claiming through them be restrained from alienating, encumbering, transferring, dealing with, disposing off parting with possession of or inducting any third party in the suit property, described in Exhibit A hereto the suit property or any part thereof;
(iii) The Court Receiver shall take symbolic possession in the first instance with due notice to the local police station. The Inspector- in-charge of the police station shall ensure that sufficient protection is given to the Court Receiver's representatives upon his visit.
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908.ia-1-19(sl-1377-19)(U).odt
(iv) The Court Receiver to visit the premises to execute this order aforesaid on 24th January, 2020.
(iv) All parties to act on an authenticated copy of this order.
(v) Reply, if any, to be filed within one week from service of a copy of this order.
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