Bombay High Court
Smt. Neela Prabhubhai Rathod vs Vasudeobhai Jadaoji Rathod ... on 2 November, 2017
Bench: Z.A. Haq
Judgment 1 wp3563.17+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3563 OF 2017
WITH
WRIT PETITION NO. 3564 OF 2017
Smt. Neela Prabhubhai Rathod,
aged about 63 years, Occu.: Nil,
R/o. 19, Dharampeth Extension, Shankar
Nagar, Nagpur through its power of attorney
holder Prabhubhai Jadhavji Rathod, aged
about 73 years, Occu.: Retired, Resident of
19, Dharampeth Extension, Shankar Nagar,
Nagpur.
.... PETITIONER.
// VERSUS //
1. Vasudeobhai Jadaoji Rathod (Died)
1-a. Veena Wasdeobhai Rathod
Aged about 68 years, Occu.: Nil,
Resident of C/o. Smt. Sadhana
Hemant Rathod, Street No.3,
Behind Shiv Temple, Fafadih,
Raipur.
1-b. Sheela Ramesh Rathod,
Aged about 53 years, Occu.: Nil,
Resident of Nandanwan North
Sundervash Udaipur, Rajasthan.
1-c. Sadhana Hemant Parmar, aged about
50 years, Occ.: Nil, Resident of Street
No.3, Behind Shiv Temple, Fafadih,
Raipur (Chhatisgarh).
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1-d. Anju Rajesh Rathod, aged about 46
years, Occ. : Nil, Resident of Post Box
No. 38, Near Shambhu Temple,
Toongri, Post : Chaibasa, Shingbhum,
Jharkhand 822 031.
1-e. Deepak Wasdeobhai Rathod, aged about
48 years, Occ.: Business,
2. Kantilal Jadhavji Rathod, aged about 75 years,
Occ. : Business,
3. Shantilal Dayaram Rathod, aged about 74 years,
Occ. : Business,
4. Chandrika Kantilal Rathod, aged about 69 years,
Occ. : Nil,
5. Tara Shantilal Rathod, aged about 67 years,
Occ. : Nil,
6. Harish Dayaram Rathod, aged about 67 years,
Occ. : Nil,
7. Harshada Harish Rathod, aged about 63 years,
Occ. : Nil,
The respondent No.1(e) to 7 are residents of
19, Dharampeth Extension, Shankar Nagar,
Nagpur.
8. Jaykuwar Dayaram Rathod (Died)
8.a. Narmada Odhaoji Shivji Parmar,
aged about 73 years, Occu.: Nil,
Resident of C/o. Uday Odhaoji Parmar,
Railways Contractor, House No.184,
New Mahal, Post Mugal Sarai,
Banaras, District : Chandauli (U.P.)
8.b. Bhupendra Dayaram Rathod, aged about
63 years, Occu. Railway Contractor,
Resident of Thekedari Mohalla,
Post : Nainpur, District : Mandla (M.P.)
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8.c. Hemlata Harish Kodiyar, aged about
61 years, Occu. Nil, Resident of
C/o. Harish Kodiyar, 33, Vivekanand
Nagar, Dindigul 624 001 (Tamilnadu)
8.d. Hansa Chandrakant Gohil,aged about 59
years, Occ. Nil, resident of Near Railway
Station, Station Road, PO Maharajpur,
District : Mandla (M.P.)
8.e. Ramila Narendra Vegad, aged about 57
years, Occ. : Business, Resident of Jigyasa
Ice Cream Parlour, Opp. S.B.I. Behera Mal
Road, PO & Dist. Jharsugda - 768 203.
8.f. Urmila Sharad Chauhan, aged about 55
years, Occ. Nil, resident of Shivanand Nagar,
(Shree Nagar), New Old Akash Gas Godown,
District : Raipur (Chhattisgarh).
8.g. Vinay Gunwant Rathod, aged about 33
years, Occ. Business, resident of Sector 17,
Block No.60, Chopsani Housing Board,
Jodhpur (Rajasthan).
9. Chetna Bhupendra Rathod, aged about 58
years, Occu.: Nil, resident of Thekedari
Mohalla, Manipur, District : Mandla (M.P.)
10. United India Insurance Co. Ltd. Regional and
Divisional Office, through its Manager,
Ambika House, Office at 19, Dharampeth
Extension, Shankar Nagar, Nagpur.
11. Life Insurance Corporation of India,
through its Manager, Office at 19,
Ambika House, Dharampeth
Extension, Shankar Nagar, Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri Alok Daga, Advocate for Petitioner.
Shri V.V.Bhangde, Advocate for Respondent Nos.1(e), 2, 3, 4, 6 & 7.
Smt. Amal Rohilla, Advocate for Respondent No.10.
___________________________________________________________________
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Judgment 4 wp3563.17+1.odt
CORAM : Z.A.HAQ, J.
DATED : NOVEMBER 02, 2017.
ORAL JUDGMENT :
1. Both these petitions can be disposed of by common judgment as
same points are involved in both the petitions.
2. Heard learned advocates for the respective parties.
3. RULE. Rule made returnable forthwith.
4. These petition are filed by the decree holder challenging the orders
passed by the trial Court on applications Exh.469, 488, 221, 256-A, 364, 404,
388 and 450. The various applications are filed by the respective parties for
withdrawal of the amount of their respective shares as per preliminary decree
passed in Regular Civil Suit No.354 of 1996. The judgment passed in
Regular Civil Suit No. 354 of 1996 is challenged in appeal which is pending
before the District Court. By the judgment passed in Regular Civil Suit
No.354 of 1996 it is held that the plaintiff is entitled to receive 15% share in
annual rent of the suit building and the defendants are entitled for the
remaining 85% of the amount.
Judgment 5 wp3563.17+1.odt
5. The amount of rent is being regularly deposited and the parties are
moving applications seeking permission to withdraw the amount as per their
share.
6. Now, the grievance of the petitioner/ plaintiff is that the
respondent No.1-A Veena Wasdeobhai Rathod wants her share of 10%
separately and therefore, excluding Smt. Veena other defendants are entitled
for 75% amount i.e. being deposited before the trial Court, however, there is
a chance of miscalculation and without deducting the amount of 10%
receivable by Smt. Veena, other defendants may be given 85% of the amount
and then it will affect the plaintiff and there will be difficulty for receiving
her share of 15% amount.
Shri V.V.Bhangde, learned advocate for the defendants except
Smt. Veena Wasdeobhai Rathod, has submitted that those defendants are
seeking withdrawal of only 75% of the amount and not 85% of the amount.
In view of this specific submission made on behalf of the
defendants the apprehension of the plaintiff is ill-founded.
7. Other grievance of the plaintiff is that the defendants are seeking
to withdraw 85% (or 75%) from the amount of Rs.9,23,000/- which is
deposited towards interest on the amount of Rs.9,39,987.33 as per clause (v)
Judgment 6 wp3563.17+1.odt
of the operative order of the judgment given in Regular Civil Suit No.354 of
1996. It is submitted that this amount of Rs.9,23,000/- is receivable
exclusively by the plaintiff.
8. Shri V.V.Bhangde, advocate for the respondents (excluding
respondent No.1-a) has submitted that when the judgment and decree in
Regular Civil Suit No. 354 of 1996 was challenged before this Court in First
Appeal No. 232 of 2007, while admitting the appeal this Court passed order
on 18th April, 2007 directing the defendants to deposit an amount of
Rs.9,40,000/- as per clause (v) of the operative order referred above. It is
submitted that this amount is withdrawn by the plaintiff. The learned
advocate for the plaintiff has not disputed this fact.
It is further submitted by Shri V.V. Bhangde, advocate that the
amount of Rs.9,23,000/- towards interest on the amount of Rs.9,40,000/- is
also in deposit with the trial Court and the defendants do not intend to
withdraw 85% of that amount.
Accepting the above submission made on behalf of the
respondent, the grievance of the plaintiff in this regard does not survive. It
is clarified that while disbursing the amount, the trial Court should not touch
the amount of Rs.9,23,000/- and the interest which has accrued on it.
Judgment 7 wp3563.17+1.odt
9. In Writ Petition No. 3563 of 2017 the subject matter is order
passed on application (Exh.488). By this application the plaintiff sought
permission to withdraw Rs.15,26,119/- lying in the deposit with Nazir.
Paragraph 12 of this application shows that the plaintiffs sought withdrawal
of the amount of Rs.15,26,119/- out of the amount of Rs.150 lakhs deposited
for the period from 1st June, 1994 till 30th September, 2008.
The advocate for the defendants has pointed out the judgment
given by this Court in Writ Petition No. 6007 of 2010 on 30 th April, 2011. In
this petition also this Court was required to consider the entitlement of the
parties for withdrawal of the amount. While disposing the writ petition this
Court directed in para (iv) of the operative order as follows :
"(iv) It is made clear that the petitioner shall not be
entitled to make any application henceforth till the final
disposal of Final Decree proceedings either in this Court
or in the Executing Court for the balance amount."
Inspite of the specific order that the plaintiff would not be
entitled to make any application seeking withdrawal of the amount till
disposal of the final decree proceedings, the plaintiff has moved the
application (Exh.488). This order passed on 30th April, 2011 precludes
plaintiff from moving any application for withdrawal of any amount from the
amount deposited till that date. It is submitted that the application is moved
as the plaintiff requires the amount for medical expenses. The explanation
Judgment 8 wp3563.17+1.odt
cannot be accepted and if at all such contingency has arisen the plaintiff
should have moved appropriate application before this Court and should
have sought permission for moving application before the trial Court.
In fact, filing of the application (Exh.488) is contrary to the
order passed by this Court and is contemptuous. However, without going
into that aspect, in my view, the interests of justice would be sub-served by
imposing costs of Rs.Ten Thousand on the plaintiff to be payable to the
respondent No.1-e to 9. The amount be deposited before the trial Court
within one month and the trial Court shall disburse it proportionately to the
above respondents.
10. Further grievance of the plaintiff is that inspite of the order passed
by the trial Court on applications (Exhs.130, 161, 178, 262, 296) on 12 th
September, 2013 directing that the Judgment Debtors shall start
maintenance work of the building as soon as the amount is received by them,
the judgment debtors have not taken any steps in the matter though amount
is received by them and the tenants (LIC of India and United India Insurance
Co.) have filed applications Exh.No. 485 and Exh.No.492 making grievance
about this aspect before the trial Court. It is not understood as to how the
plaintiff can make a grievance in this regard in this writ petition. The issue
of maintenance and repairs of the building is being agitated by the tenants
vide applications Exh.485 and Exh.492.
Judgment 9 wp3563.17+1.odt
For the reasons recorded above, the writ petitions are disposed
in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE
RRaut..
