Himatlal Jasraj vs H.D. Commercial Corporation And ...
2017 Latest Caselaw 6014 Bom

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rrpillai              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         ORDINARY ORIGINAL CIVIL JURISDICTION
                             NOTICE OF MOTION NO. 31 OF 2017
                                                    IN
                                     T.P.A.C.L. NO 169 OF 2016
                                                    IN
                           INSOLVENCY PETITION NO. 160 OF 1971


       M/s. Sharp Construction Co.                               ...Applicant


       Himatlal Jasraj                                           ... Petitioning Creditor


                In the matter between
       H. D. Commercial Corporation & Ors.                       ... Insolvents
                vs.
       Manohar G. Samant                                         ... Respondent


       Mr. Arshad Shaikh i/b. Mr. S.M.Shettigar for the Applicant.
       Ms. Deepa Chauhan a/w. Mr.Sujit Lahoti, Mr. Parth Shah, Ms. Reshma
       Nathani i/b. Ms. Veera Shinde for the respondent.
       Mr. M. D. Narvekar, Official Assignee present.


                                                 CORAM : A. K. MENON, J.

DATED : 16 th AUGUST, 2017 P.C. :

1. By this Notice of Motion the applicant (objecting party) challenges

orders dated 5th May, 2016 and 15th February, 2017 passed by the

Prothonotary and Senior Master of this Court allowing an application by the

respondent for issuance of certified copies of certain proceedings to which the

respondent was not a party. The application is made under Rule 268 of The

Bombay High Court (Original Side) Rules.

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2. The challenge to the order is on the basis that sufficient cause has not

been shown for the allowing issuance of certified copies. The applicant is

claiming to be owner of plot of land situated at C.S. No. 369, 1/369 at

Urankar Wadi, Girgaon, Mumbai and structures standing there on. The

structures are stated to be tenanted and the respondent to this Notice of

Motion had originally claimed as tenant of the premises, however, later as an

occupant.

3. On behalf of the applicants Mr. Shaikh, learned Counsel submitted

that the respondent is not entitled to copies of the entire records since the

respondent is only concerned with ownership of the applicant in the subject

property of which he claims to be an occupant. Mr. Shaikh submitted that

the order granting permission to issue of certified copies of the entire record

and proceedings as set out in application dated 27 th April, 2016 is wrong.

According to Mr. Shaikh the information is being sought in the nature of a

fishing inquiry with the intention of adopting frivolous proceedings against

the applicant in this Notice of motion.

4. Mr. Shaikh submitted that the respondent has also been recognised as

an occupant in the proposal for redevelopment of the property in question

and his consent as required by MHADA has also been obtained on or about

24th April, 2016 a copy of which appears as annexure to the affidavit in

support of this Notice of Motion. Mr. Shaikh submitted that this letter

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addressed to the present applicant by the respondent clearly admits of his

being occupant of Room no. 15 Chawl No. 4 on the first floor of one of the

buildings and once it is so recorded the respondent is only concerned whether

ownership of the building housing the premises in the respondent's

occupation is vested in the present applicant and for the aforesaid purpose

copies of documents already provided to him are sufficient. If the

Prothonotary and Senior Master had provided copies of order dated 10 th July,

1979 passed in Notice of Motion No. 35 of 1979 in Petition No. 160 of 1971

it would sufficiently establish that the present applicants were entitled to

develop the property as owners thereof.

5. Mr. Shaikh submitted that apart from verifying ownership of the

property in question or a part thereof no other legitimate can be achieved by

obtaining the copies of the entire record and proceedings. He further

submitted that the respondent is seeking to create hurdles in the

redevelopment project and has filed this application before the Prothonotary

and Senior Master under Rule 268 with ulterior motive and therefore the

impugned orders should be set aside.

6. Mr. Shaikh also submitted that on an earlier occasion, the Secretary of

Urankarwadi Rahivasi Welfare Association had made application on 23 rd

February, 2015 seeking certified copies of papers and proceedings in

Insolvency Petition No. 160 of 1971 along with Notice of Motion No. 35 of

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1979. He invited my attention to the application made and the affidavit in

support dated 23rd February, 2015 as also copy of the order passed on

21st October, 2015 on the said application. Mr. Shaikh submitted that the

Association of tenants / occupant of the said plot of land had themselves been

given only certified copies of the order and judgment dated 10 th July, 1979

and had been denied copies of the entire record and therefore the respondent

in this Notice of Motion was not entitled to receive copies of the entire record

and proceedings. Mr. Shaikh therefore submitted that the orders allowing

the issuance of certified copies is required to be set aside.

7. This notice of motion is opposed by Ms. Chauhan. She contended that

the respondent was applying through his father late Mr. Samant who was

admittedly a tenant of the premises being Room No. 15 Chawl No. 4. She

pointed out that the application made by the aforesaid association was widely

worded. However, in paragraph 3 of the affidavit in support the applicant had

clearly stated that he required orders and judgment passed in Notice of

Motion No. 35 of 1979 in Insolvency Petition No. 160 of 1971 to enable

them to initiate legal proceedings in respect of the property forming subject

matter of that order and judgment. In view of the scope of the application

being limited as set out in paragraph 3 of the affidavit, the association was

issued certified copies limited to the order and judgment. Nothing more needs

to be read into the said order as having refused issuance of copies of the

remaining papers claimed in the present application.

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8. In support of his application respondent has also filed affidavit dated

5th May, 2016 setting out detailed reasons why copies of the orders are

required. He has also stated he had taken search of the records with the Sub

Registrar of Assurances to verify whether consent terms filed in the High

Court were recorded in the land records, but no such record of registration is

found. He had serious doubt as to extent of the land that had been agreed to

be conveyed and therefore he required copies of the entire record and

proceedings since these form the basis of the order and judgment in Notice of

Motion No. 35 of 1979 in Insolvency Petition No. 160 of 1971.

9. Ms. Chauhan also relied upon copies of the letter dated 12 th October,

1979 from one Gomtibai Damodar Merchant addressed to the father of the

respondent wherein the said Mr. Merchant requested the present applicant to

take note of the attornment of tenancy of the aforesaid premises in Shop No.

15 Chawl No. 4 in favour of M/s.Sharp Construction Ltd. She pointed out

that the respondents father, the original tenant had died in the year 1973, a

fact which is not disputed by the present applicant and that this request for

attornment of tenancy was also signed by the present respondent Mr.

M.G.Samant whose signature appears alongside that of the author of the

letter. In the circumstances, it was obvious that the application was bonafide

and was not attempt at securing copies with any ulterior motive.

10. Having heard the learned Counsel for the parties, I am of the view that

the impugned orders have been passed in the exercise of discretion vesting on

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the Prothonotary and Senior Master under Rule 268 which reads as follows :

Rule 268 : Search and certified copies of documents to a person not a party to suit or matter.

The Prothonotary and Senior Master may, on the application of a person not a party to a suit or matter, on sufficient cause being shown, allow search or grant certified copies of such papers and proceedings in the suit or matter as the Prothonotary and Senior Master may think fit, on payment of the prescribed fees and charges. When such person applies for a certified copy of a part of a document on record, the Prothonotary and Senior Master may, his his discretion, grant such copy.

On a fair reading of the rule 268 it is revealed that whenever a person who is

not a party to any suit or matter applies for grant of certified copies of papers

and proceedings in a suit or matter and the application discloses sufficient

cause, the Prothonotary and Senior Master can exercise his/her discretion in

granting copies on payment of the prescribed fees. The object of Rule 268 is

to ensure that parties who apply for certified copies are in need of such copies

for legitimate reasons and not for ulterior motive.

11. The application in the present case is accompanied by an affidavit

which discloses sufficient cause and the exercise of discretion by the

Prothonotary and Senior Master under Rule 268 in this case cannot be faulted

for reasons set out in the present notice of motion and affidavit in support

and the submissions of the learned Counsel for the applicants.

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12. The applicant is admittedly an occupant of the premises and

undoubtedly the son of a former tenant. In that sense there can be no doubt

that the applicant is entitled to claim benefit under his father's tenancy and to

which he may be entitled to as heir of a deceased tenant. I see no reason why

the copies of the proceedings cannot be granted to him. The apprehension in

the mind of the applicant that the copies being provided would result in

frivolous proceedings being initiated against is misplaced. If the copies are so

provided and it reveals the true state of affairs and the legal ownership of the

property in question it may also provide sufficient information to the

respondent to not adopt any proceeding, if his interests are sufficiently

protected.

13. In the circumstances, there is no reason to interfere with either of the

impugned orders. The Notice of Motion is vexatious. Accordingly, I pass the

following order : -

(i) Notice of Motion is dismissed.

(ii) The applicant shall pay costs of Rs.5000/- to the Maharashtra

State Legal Services Authority within a period of two weeks from

today.

(A. K. MENON, J.)