Bombay High Court
Mayur Mangaldas Kothari vs Estate Of Late Neeraj Vinayak Vora ... on 25 October, 2021
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
[ COMMERCIAL DIVISION ]
INTERIM APPLICATION NO.2423 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION (LODGING) NO.21716 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO.1148 OF 2019
Mayur Mangaldas Kothari .. Applicant-Decree Holder
Vs.
Estate of Late Neeraj Vinayak Vora & Anr. .. Respondents-Judg. Debtors
Mr. Karl Tamboly, with Ms. Ruchi Turakhia and Ms. Ishani Paradkar, i/by
Nityosh Suneel & Associates, for the Applicant-Decree Holder.
None for the Respondents-Judgment Debtors.
CORAM : A. K. MENON, J.
DATE : 25TH OCTOBER, 2021.
P.C. :
1. By this IA, the applicant-decree holder seeks leave to proceed in
execution against the estate of late Neeraj Vora to the extent of
Rs.2,05,00,000/-, being the decretal amount, pursuant to a decree in favour of
the applicant, which was passed on 2nd August 2021. The application also
seeks an injunction against respondent no.1-judgment-debtor, who is the
brother of the deceased, who was the owner of the flat and which now forms
part of the estate of the said deceased late Neeraj Vora.
36-IA-2423-2021.doc
Dixit
2. The application today is to restrain the respondent no.1-judgment
debtor from transferring the suit flat or creating any third party rights in the
said flat. The apprehension is that the flat is mortgaged to the applicant-
judgment creditor. The original title-deeds are said to be in possession of the
applicant, so were the keys. The flat was vacant and the respondent no.1 is
believed to have entered the flat by breaking open the lock, as set out in
paragraph 9 of the IA, and has inducted one Bhargav Vaidya into the flat.
3. Mr. Tamboly therefore submits that there is a case made out for grant
of ad-interim relief, as otherwise it is possible that the premises may be
alienated and disposed and that the applicant-judgment creditor may be left
without any assets for executing and recovering the decretal dues. According
to him, the said respondent no.1 is the only claimant to the estate of late
Neeraj Vora and if this flat is disposed, it may be difficult to recover the
decretal dues. He submits that there is no order of any other court preventing
the 1st respondent-judgment debtor from dealing with or disposing the flat.
4. The respondent no.1 is absent on call. Mr. Tamboly submits that notice
has been served upon the respondents and that an affidavit-of-service has
been filed. He relies upon the affidavit-of-service dated 14 th October 2021 in
support of his statement that the respondents-judgment debtors have been
duly served. His second affidavit-of-service dated 22 nd October 2021 is also
on record and the annexures to the said affidavit reveals that the respondent
36-IA-2423-2021.doc
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no.1 has been informed of the fact that the matter will be listed today and will
be heard today.
5. Accordingly, the respondents being absent on call and there being no
affidavit-in-reply controverting the statements in the present IA, I pass the
following order :-
(i) There will be an ad-interim order in terms of prayer
clause (b) of the IA, which is reproduced below :-
"(b). Pending the hearing and final disposal of this
interim application, the Hon'ble Court may be
pleased to prohibit the Judgment Debtor from
transferring and / or creating any charge or third
party rights in any manner on the said flat."
(ii) Affidavit-in-reply, if any, to be filed within two weeks of
service of notice.
(iii) Affidavit-in-rejoinder, if any, to be filed within two
weeks thereafter.
(iv) Sealing of the decree to the extent of the principal sum,
as per the order dated 2 nd August 2021, is dispensed
with.
(A.K. MENON, J.)
Digitally signed
SNEHA
ABHAY
by SNEHA
ABHAY DIXIT 36-IA-2423-2021.doc
Date:
DIXIT 2021.10.26
14:10:28 +0530 Dixit
