Bombay High Court
Bandya A. Chawla And 2 Ors vs Ajay Lajpatrai Chawla And 3 Ors on 23 February, 2022
Bench: N. J. Jamadar
NMS-86-2016 S-2656-2007.doc
lIN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 86 OF 2016
Digitally
signed by
IN
SHRADDHA
SHRADDHA KAMLESH
SUIT NO. 2656 OF 2007
KAMLESH TALEKAR
TALEKAR Date:
2022.02.23
17:34:58
Bindiya Chawla ...Applicant
+0530
In the matter between :
1. Mrs. Bindiya Chawla
2. Ahilya Chawla
3. Aditya Chawla
All presently residing at Flat 101
& 102 of Legacy Building,
Bandra (West), Mumbai 400 050. .. Plaintiffs
vs.
1. Mr. Ajay L. Chawla
2. Mr.Lajpatrai Chawla
3. Mr.Rajiv L. Chawla
4. Chander Chawla
All presently residing at 2 'Seakist'
Building, B.J. Road, Bandra (West),
Mumbai 400 050.
5. Legacy Co-operative Housing Society Ltd.
G-1 Plot No.17, Near Almeida Park,
Bandra (West), Mumbai 400 050.
6. Kotak Mahindra Bank Ltd.
Plot No.7, 7th Floor,
Sector -125, Nodia-201313
Also at :
Kotak Mahindra Bank Ltd.,
RARD DEPT.
Samsung Building, First Floor,
Shraddha Talekar, PS 1/22
NMS-86-2016 S-2656-2007.doc
Amar Brass, Vinay Bhaya Complex,
159-A, C.S.T. Road, Kalina,
Santacruz (East),
Mumbai 400 098. ... Defendants
Mrs. Taubon F. Irani a/w. Mr. Parvez S. Daruwalla for plaintiffs.
Mr.Darshan Mehta a/w. Mr.Aaditya Mapara i/b Dhruve Liladhar
and Co. for defendant No.1.
Mr.Shanay Shah i/b Crawford Bayley and Co. for defendant Nos.2
& 3.
CORAM : N. J. JAMADAR, J.
CLOSED FOR ORDER : 11th OCTOBER 2021
PRONOUNCED ON : 23rd FEBRUARY 2022
ORDER :
1. This notice of motion is taken out by the plaintiffs for the
following reliefs :
(a) Pending the hearing the fnal disposal of the
suit, this Hon'ble Court be pleased to direct the
Defendants and/or Defendant No.4 to pay the
maintenance charges being her share to the society of
1st foor, Legacy Building, the Legacy Co-operative
Housing Society, T.P.S.-IV, 3rd road, Bandra (West),
Mumbai 400 050.
(b) Pending the hearing and the fnal disposal of
the Suit, this Hon'ble Court be pleased to appoint
Court Receiver with all power under Order XL of the
Code of Civil Procedure, 1908 in respect of movable
and immovable properties listed at Exhibit D and E to
the plaint excluding 1st foor, Legacy Building, the
Legacy Co-operative Housing Society, T.P.S.-IV, 3rd
road, Bandra (West), Mumbai 400 050.
(c) Pending the hearing and fnal disposal of the
suit, the Defendants and/or Defendant No.4 may be
Shraddha Talekar, PS 2/22
NMS-86-2016 S-2656-2007.doc
directed to repay loan amount/outstanding towards
Kotak Mahindra Bank in respect of fat on 1 st foor,
Legacy Building, the Legacy Co-operative Housing
Society, T.P.S.-IV, 3rd road, Bandra (West), Mumbai 400
(d) Pending the hearing and fnal disposal of the
suit, upon appointment of Court Receiver in respect of
movable and immovable properties listed at Exhibits-D
and E to the plaint excluding fat on 1st foor, Legacy
Building, the Legacy Co-operative Housing Society,
T.P.S.-IV, 3rd road, Bandra (West), Mumbai 400 050,
the Court Receiver be directed to recover amount
towards loan outstanding of Kotak Mahindra Bank in
respect of fat on 1st foor, Legacy Building, the Legacy
Co-operative Housing Society, T.P.S.-IV, 3rd road,
Bandra (West), Mumbai 400 050.
(e) Pending the hearing and fnal disposal of the
suit, upon appointment of Court Receiver in respect of
movable and immovable properties listed at Exhibits-D
and E to the plaint excluding fat on 1st foor, Legacy
Building, the Legacy Co-operative Housing Society,
T.P.S.-IV, 3rd road, Bandra (West), Mumbai 400 050,
the Court Receiver be directed to recover amount
outstanding to the plaintiffs.
(f) Pending the hearing and fnal disposal of the
present suit, as a protem measure, the properties
enlisted at Exhibits-D and E to the plaint excluding
the subject fat, may be partitioned and the plaintiffs
be given their respective share in the said Joint Family
Properties/HUF properties.
2. The suit arises in the backdrop of the following facts :
2.1 The plaintiff No.1's marriage was solemnized with
defendant No.1 on 8th November 1991, at Mumbai, in
accordance with Hindu religious rites and ceremonies.
Shraddha Talekar, PS 3/22
NMS-86-2016 S-2656-2007.doc
The plaintiff No.1 and defendant No.1 started residing in
United States of America (U.S.A.) from 1991 onwards, and
acquired citizenship and registered their marriage at Las
Vegas, Nevada, USA on 11th January 1997. Plaintiff Nos. 2
and 3 were born out of the wedlock.
2.2 In the wake of marital discord, plaintiff No.1 had
instituted a petition for divorce in the Superior Court of
County of Contra Costa, USA. On 16 th/17th June 2009, a
decree of divorce was passed in the said Case No.D 06-
04845. Under the said decree, the defendant No.1 was
ordered to provide family support to the plaintiffs. An
appeal being Appeal No.A127/118, preferred by defendant
No.1 against the said decree of divorce before the Court of
Appeal of the State of California, came to be dismissed.
2.3 Defendant No.1 is a member of Joint Hindu
Family comprising of his father Mr.Lajpatrai Chawla-
defendant No.1, mother Mrs.Chander Chawla-defendant
No.4, and elder brother Mr.Rajiv Chawla-defendant No.3.
The joint family has acquired large assets and owns several
immovable properties, more particularly described in the
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Schedule Exhibit D and movable properties, described in
the Schedule Exhibit E. The defendant Nos.1 to 4 and the
plaintiffs are, thus, the members of the HUF.
2.4. The defendant No.1 has made efforts to defeat the
decree and evade compliance with the terms of the said
decree. The defendant No.1, with an oblique motive to
defeat the order of family support passed by the Superior
Court of County of Contra Costa, USA, sought to transfer
and/or relinquish his properties and/or his share in the
joint family property/HUF. As a part thereof, a Gift Deed
dated 11th June 2006 was executed by the defendant Nos.1
and 4 in favour of defendant No.3 with malafde intent to
deprive the plaintiffs of their legitimate rights and claims
in the suit property.
2.5 The defendants also obstructed to the plaintiffs'
possession and enjoyment of the plaintiff No.1's
matrimonial home, i.e., Legacy Building, Legacy Co-
operative Housing Society, Bandra (West), Mumbai 400
050. Hence, the plaintiffs were constrained to institute the
suit.
2.6 The plaintiffs, inter-alia, sought the declaration
Shraddha Talekar, PS 5/22
NMS-86-2016 S-2656-2007.doc
that the plaintiffs are entitled to share equally with the
defendants' HUF property/Joint Hindu Family property,
both movable and immovable, described in the Schedule-
Exhibits D and E to the Plaint and that the plaintiffs are
entitled to share equally with defendant No.1 his share in
the HUF property/Joint Family Property. A declaration is
also sought that the Gift Deed, dated 11th December 2006
executed by the defendant No.1 in favour of defendant
No.3 is void and illegal. A decree of perpetual injunction
restraining the defendant Nos. 2 to 4 from entering into
matrimonial home of plaintiff No.1, i.e., 1st foor, Legacy
Building, Legacy Co-operative Housing Society, Bandra
(West), Mumbai 400 050 and from disturbing her peaceful
possession thereof is also sought, in addition to an
injunction restraining the defendants from disposing of or
creating third party rights in the suit properties in any
manner whatsoever.
3. In the said suit, the plaintiffs took out a notice of motion
being Notice of Motion No.3647 of 2007 and sought the following
reliefs :
(a) Pending the hearing and fnal disposal of this suit,
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this Hon'ble Court be pleased to pass an order for
injunction restraining the defendants Nos.2 to 4 from
entering the Plaintiff's matrimonial home, i.e., 1st Floor,
Legacy building, the Legacy Co-operative Housing Society,
T.P.S., IV, 3rd foor, Bandra (W), Mumbai 400 050 and
from disturbing her peaceful possession thereof in any
manner.
(b) That pending the hearing and fnal disposal of this
suit, this Hon'ble Court be pleased to restrain the
defendants by a temporary order and injunction order
either by themselves or through their servants, agents
and subordinates from in any manner alienating,
encumbering or creating third party rights in respect of
the suit properties more particularly described in
Exhibits "D" and "E" hereto, and the defendants be also
restrained form in any way interfering with the
possession of he plaintiff of the matrimonial home, i.e., 1 st
Floor, Legacy building, the Legacy Co-operative Housing
Society, T.P.S., IV, 3rd foor, Bandra (W), Mumbai 400 050
pending the disposal of the suit.
(c) That pending the hearing and fnal disposal of the
abovementioned suit, this Hon'ble Court be pleased to
appoint Court Receiver in respect of the Suit Properties as
described in Exhibit "D" and "E" with all powers under
Order XXXIX of the Code of Civil Procedure, 1908.
4. By an order dated 31st March 2009, interim relief in terms of
afore-extracted prayer clauses (a) and (b) came to be partly
granted and the defendant Nos. 2 to 4 were restrained from
entering upon the suit fats on the 1 st Floor, Legacy building, the
Legacy Co-operative Housing Society, T.P.S.-IV, 3rd foor, Bandra
(W), Mumbai 400 050 bearing fat Nos. 101 and 102 ('suit fats') or
disturbing the possession of the plaintiffs therein. Defendant
Nos.1 to 4 were also restrained from alienating, encumbering or
Shraddha Talekar, PS 7/22
NMS-86-2016 S-2656-2007.doc
creating third party rights in respect of the suit fats on the 1 st
foor of Legacy Building.
5. In Appeal No. 235 of 2009 along with connected appeals, the
Appeal Bench, by judgment and order dated 22 nd November 2011,
was persuaded to set aside the aforesaid order passed by the
learned Single Judge in Notice of Motion No. 3647 of 2007 and the
said notice of motion came to be rejected. The Appeal Bench was
of the view that the material on record indicated that defendant
No. 4 had 2/3rd share in fats bearing Nos.102 and 102. Thus,
plaintiff No.1, who had 50% share in Flat No. 102, was not entitled
to restrain the defendant No.4 from entering into the suit fats.
6. The defendants preferred a Notice of Motion, being Notice of
Motion No. 398 of 2014 seeking the implementation of the orders
dated 22nd November 2011 in the nature that the plaintiffs be
injuncted from restraining the defendant No. 4 from entering into
and residing without any restriction in the Flat No. 101. Defendant
No. 4 also sought an order and permission to construct a concrete
partition wall by way of temporary arrangement dividing the
immovable property, i.e., fat Nos. 101 and fat No.102.
Shraddha Talekar, PS 8/22
NMS-86-2016 S-2656-2007.doc
7. By an order dated 22nd April 2014, the learned Single Judge
was persuaded to partly allow the said notice of motion permitting
the defendant No.4 to put up a temporary wall between two fats,
i.e., Flat Nos. 101 and 102 at her own costs and occupy fat No.
101, without any interruption of the plaintiffs and/or other
defendants.
8. In an appeal preferred by the plaintiffs, being Appeal (L.) No.
277 of 2014, in Notice of Motion No. 398 of 2014, the Appeal
Bench, by order dated 11th June 2014, stayed the aforesaid order
passed by the learned Single Judge. The Appeal Bench noted that
the defendant No.1, the son of defendant No.4, had not paid the
plaintiff No.1's permanent alimony as awarded by the US Court on
8th October 2009 and that defendant No.4 was residing in another
fat in the building called "SEAKIST" and thus stayed the
operation and execution of the aforesaid order of the learned
Single Judge, dated 22nd April 2014 till fnal disposal of the
appeal.
9. The plaintiffs have taken out this notice of motion with the
assertion that the defendants, in pursuance of an evil design,
have resorted to a circuitous method to dispossess the plaintiffs. A
Shraddha Talekar, PS 9/22
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loan was availed from Kotak Mahindra Bank-defendant No.6 upon
furnishing security of the suit fat No.102 at the instance of
defendant Nos.1 and 4. The repayment of EMIs was initially made
regularly by the defendant Nos.1 and 4. However, with an oblique
motive, the defendant Nos.1 and 4 have stopped paying EMIs of
the loan availed from defendant No.6, resulting in the arbitration
proceedings at the instance of defendant No.6. The defendants,
thus, intend to dispossess the plaintiffs by bringing about the sale
of the suit fat No.102 for default in repayment of the loan.
10. The defendant No.4 also committed default in payment of
maintenance bills raised by defendant No.5-society in respect of
the suit fats. Proceedings have been thus initiated by the
defendant No.5-society under section 101 of the Maharashtra Co-
operative Societies Act, 1960. Since the suit fats stand in the
name of defendant No.4 also, she is under a legal obligation to
make payment of her share of the maintenance charges to the
society. The defendants have, however, committed deliberate
defaults in payment of maintenance charges so as to entail
prejudicial consequences to the plaintiffs. Hence, on these
amongst other grounds, the plaintiffs have prayed for the reliefs,
extracted above.
Shraddha Talekar, PS 10/22
NMS-86-2016 S-2656-2007.doc
11. An affdavit-in-reply was fled on behalf of defendant No.4. At
the outset, the defendant No.4 contended that the plaintiffs have
suppressed material facts including the order passed by the
Supreme Court on 2nd April 2012, whereby the Special Leave
Petition, preferred by the plaintiffs against the order passed by the
Division Bench dated 22nd November 2011, came to be dismissed
by the Supreme Court. The defendant No.4 further contends that
the loan, for which the suit fat No.102 has been furnished as
security, had been availed by plaintiff No.1 alone, for her jewelry
business. The entire loan was disbursed in favour of plaintiff No.1
and the defendant No.4 was made a nominal co-borrower since
the loan was advanced against the security of the suit fat No.102.
EMIs of the said loan were paid by plaintiff No.1 only.
12. The defendant No.4 has assailed the tenability of the notice
of motion, as earlier Notice of Motion bearing No.3647 of 2007, in
which similar prayers were made, came to be rejected. The present
notice of motion is, therefore, an abuse of the process of the
Court. It was denied that the defendant No.1, the husband of
plaintiff No.1 and father of plaintiff Nos.2 and 3 was a joint owner
of fat No.101. According to defendant No.4, the defendant No.1
had not made any contribution towards the purchase price of the
Shraddha Talekar, PS 11/22
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said fat and, therefore, the defendant No.1 subsequently
relinquished his rights over the said fat in favour of defendant
No.3 -Rajiv Chawla, under a Deed of Gift dated 16th January 2006.
The plaintiff No.1, according to defendant No.4, has established
unauthorized possession over the suit fats and has even parted
with possession of the suit fats in favour of one Mr. Abdul Patel.
Hence, the plaintiffs are not entitled to any of the reliefs.
13. The defendant Nos.1, 2 and 3 have fled affdavits-in-reply
and adopted the contentions in the affdavit-in-reply fled on
behalf of defendant No.4 and resisted the prayers in the notice of
motion. An affdavit in rejoinder is fled on behalf of the plaintiffs,
followed by an affdavit in sur-rejoinder on behalf of defendant
No.4.
14. In the backdrop of the aforesaid pleadings, I have heard
Mrs.Taubon Irani, the learned counsel for the plaintiffs,
Mr.Darshan Mehta, the learned counsel for defendant No.1 and
Mr.Shanay Shah, the learned counsel for defendant Nos.2 and 3,
at some length.
15. Mrs.Irani, the learned counsel for the plaintiffs took the
Court through the orders passed by this Court, especially the
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NMS-86-2016 S-2656-2007.doc
order dated 31st March 2009 passed by the learned Single Judge
in Notice of Motion No.3647 of 2007. Laying emphasis on the
observations in the said order to the effect that the plaintiffs'
right, title and interest over the suit fats is prima-facie made out,
and the fact that defendant No.1 had not paid the permanent
alimony of US$ 5,72,567 awarded by the US Court, as recorded in
the order of the Division Bench dated 11 th June 2014 in Notice of
Motion (L.) No. 1046 of 2014 in Appeal (L.) No. 277 of 2014, Mrs.
Irani would urge that the plaintiffs cannot be left in the lurch. On
the one hand, the defendant No.1 has deprived the plaintiffs of the
family support. On the other hand, by deliberate acts of omission
and commission, the defendants are bent upon dispossessing the
plaintiffs from the suit fats by committing defaults in payment of
EMIs and the maintenance charges. None other than the plaintiffs
would suffer the prejudicial consequences of the aforesaid
defaults. Therefore, in the circumstances of the case, at this
juncture, according to Mrs.Irani, it is necessary to grant reliefs in
terms of prayer clauses (a) and (c) of the notice of motion. Lest the
orders passed by this Court would be frustrated in an indirect
manner as the plaintiffs would be deprived of the roof over their
head.
Shraddha Talekar, PS 13/22
NMS-86-2016 S-2656-2007.doc
16. In opposition to this, Mr.Shanay Shah, the learned counsel
for the defendant Nos.2 and 3 stoutly submitted that none of the
prayers in the notice of motion deserves to be entertained. First
and foremost, with the setting aside of the order dated 31 st March
2009 passed by the learned Single Judge in Notice of Motion No.
3647 of 2007, by the Division Bench in Appeal No. 235 of 2009
along with Appeal No. 103 of 2010 by order dated 22 nd November
2011, the plaintiffs are not entitled to refer to and rely upon the
observations in the order passed by the learned Single Judge.
Moreover, the fact that the Special Leave Petition being (Civil)
No.9218-9219/2012, preferred by the plaintiffs against the said
order passed by the Division Bench, came to be dismissed,
precludes the plaintiffs from claiming any of the interim reliefs
which came to be specifcally rejected by the Division Bench,
urged Mr. Shah.
17. As a corollary to the aforesaid submissions, Mr. Shah would
urge that the prayers in the instant notice of motion are thus
barred by the principle of res-judicata. In order to bolster up this
submission, Mr. Shah placed reliance on the judgments of the
Supreme Court in the cases of Hope Plantations Ltd. Vs. Taluk
Shraddha Talekar, PS 14/22
NMS-86-2016 S-2656-2007.doc
Land Board, Peermade and Anr. 1
and Direct Recruit Class II
Engineering Offcers' Association Vs. State of Maharashtra
and Ors. 2.
18. On the justifability of the prayer clauses (a) and (c), pressed
into service on behalf of the plaintiffs, Mr. Shah would urge that
the material on record would indicate that the plaintiff No.1 had
availed the loan for her business purpose and the defendant No.4
was made a co-borrower to facilitate the loan as it was advanced
against security of the suit fat No.102. However, the plaintiff No.1
was the sole benefciary of the said loan. Reliance was sought to
be placed on the documents which evidence the advance of the
said loan and the stand taken by the plaintiff No.1 in the
arbitration proceedings. Since the plaintiffs have all along been in
occupation of the suit fats, despite the order passed by the
Division Bench declining to grant any injunctive reliefs against the
defendant No.4, who admittedly had 2/3rd share in the suit fats,
the plaintiffs prayer for a direction against defendant No.4 to pay
proportionate maintenance is not only unjustifable but most
iniquitous, urged Mr. Shah.
1 (1999) 5 SCC 590
2 (1990) 2 SCC 715
Shraddha Talekar, PS 15/22
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19. Evidently, in Notice of Motion No.3647 of 2007, the plaintiffs
had sought reliefs in the nature of appointment of Court Receiver
[prayer clause (c)], injunction against defendant Nos. 2 to 4 from
entering the suit fats [prayer clause (a)] and alienation or
otherwise creation of third party rights in respect of the suit fats
on the 1st foor of Legacy Building [prayer clause (b)]. By order
dated 31st March 2019, a learned Single Judge granted interim
reliefs in terms of prayer clauses (a) and (b), in part. The
defendant Nos. 2 to 4 were restrained from entering upon the suit
fats or disturbing the possession of the plaintiffs therein. All the
defendants were restrained from alienating, encumbering or
creating third party rights in respect of the suit fats. The learned
Single Judge, however declined to grant relief of appointment of
Court Receiver.
20. In Appeal No. 235 of 2009 in Notice of Motion No. 3647 of
2007, the Appeal Bench was persuaded to set aside the order
passed by the learned Single Judge. The Appeal Bench observed
in clear and explicit terms that defendant No.4 had 2/3rd share in
the suit fats and, thus, no relief could be granted in favour of the
plaintiffs. It was recorded that the defendant No.1 was the sole
owner of fat No.101 and she had half share in fat No.102. Thus,
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Notice of Motion No. 3647 of 2007 came to be rejected.
21. It would be contextually relevant to note that the defendant
No.4 passed away on 1st December 2016. Though the plaint came
to be amended, the plaintiffs have not made any effort to amend
the prayer clauses in the notice of motion and modulate the reliefs
in line with the consequences which emanate from the death of
the defendant No.4. I deem it in the ftness of things to consider
the justifability of the prayers in the notice of motion on the basis
of the pleadings in the notice of motion and advert to the
consequences fowing from the amendment in the plaint in the
concluding part of the order.
22. In the backdrop of the aforesaid facts, if the prayers (b), (d)
and (e) in the instant Notice of Motion are considered, it becomes
clear that they revolve around the claim for appointment of the
Court Receiver. The prayer for appointment of Court Receiver was
specifcally rejected by the learned Single Judge in Notice of
Motion No. 3647 of 2007. Eventually, the Notice of Motion No.
3647 of 2007 itself came to be dismissed by the Appeal Bench.
Thus, the submissions on behalf of the defendants that the
aforesaid prayers in the notice of motion are barred by the
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principle of res-judicata, cannot be said to be unfounded. It is
trite that the principle of rej-judicata applies to different stages of
the same proceeding.
23. Prayer clause (f) in the instant Notice of Motion is in the
nature of interim partition, during the pendency of the suit, which
by its very nature, cannot be granted at this stage. In the light of
clear and categorical observations by the Division Bench that the
plaintiffs were not entitled to any of the interim reliefs as no
strong prima-facie case was then made out by the plaintiffs, the
plaintiffs have to surmount apparently insuperable obstacles.
24. Faced with the aforesaid situation, Mrs. Irani endeavoured
to press prayer clauses (a) and (c). It was urged that the Court has
to consider the consequences which emanate from the default on
the part of defendant Nos.1 and 4 in repaying the loan amount
and society maintenance charges. The resultant effect would be
the sale of the suit fats in execution of the order/award which
may be passed in the proceedings initiated at the instance of
defendant No.5-Society and defendant No.6-Bank and, therefore,
it is imperative to direct the defendants and/or defendant No.4 to
pay the EMIs and the maintenance charges, especially in the
Shraddha Talekar, PS 18/22
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backdrop of the fact that the defendant No.1 has yet not satisfed
the decree of permanent alimony.
25. The aforesaid submissions are required to be appreciated in
the backdrop of the fact that pursuant to the order dated 22 nd
November 2011 passed by the Appeal Bench in Appeal No.235 of
2009 and Appeal No. 103 of 2010, in Notice of Motion No.398 of
2014, the learned Single of this Court had permitted defendant
No.4 to put up a temporary wall between two fats, i.e., fat Nos.
101 and 102 at her own costs and the defendant No.4 was also
permitted to occupy fat No.101, without any interruption from the
plaintiffs and/or other defendants. While staying the effect and
operation of the said order, in Notice of Motion (L.) No. 1046 of
2014 in Appeal (L.) No. 277 of 2014, the Division Bench of this
Court noted that the defendant No.4 had been residing in another
fat in a building called "SEAKIST". It was further noted that the
defendant No.1 had not yet paid the permanent alimony, as
ordered by the US Court. It thus emerges from the record that
the suit fats are in the occupation of the plaintiffs. The question
that wrenches to the fore is whether to obviate the threat of
dispossession of the plaintiffs, on account of default in payment of
the loan, in respect of which security interest is created over the
Shraddha Talekar, PS 19/22
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suit fat No.102, and the maintenance charges, it is necessary to
direct the defendants and/or defendant No.4 to make the
payment.
26. Prima-facie, the documents placed on record by the
defendants do indicate that the loan was availed by plaintiff No.1.
Indeed, the defendant No.4 was shown as a co-borrower. In the
affdavit-in-rejoinder fled in Notice of Motion No. 3647 of 2007,
the plaintiff No.1 had asserted that all EMIs were paid by the
plaintiff No.1 by sending remittances from abroad. Prima-facie, it
seems that the plaintiff No.1 was the principal borrower.
Undoubtedly, the liability of the co-borrower and the guarantor
would be co-extensive. The fat No.102, over which, security
interest has been created, stood in the joint names of plaintiff No.1
and defendant No.4. In these circumstances, the defendant No.4
cannot be compelled to repay the EMIs, especially in this suit,
wherein the rights of the plaintiffs to have an equitable partition
of the suit properties awaits adjudication.
27. On the aspect of the payment of maintenance charges to
defendant No.5-society, the following factors assume signifcance.
Firstly, under the governing provisions of law and bye-laws, the
Society can proceed only against the members. Secondly, the
Shraddha Talekar, PS 20/22
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disputes between the Society and its members cannot be
adjudicated in this suit. Thirdly, the plaintiffs claimed to have
been all along in the occupation of the entire frst foor of the
Legacy Building. And, lastly, as noted above, the defendant No. 4
was found to be residing in another apartment in 'Seakist'. In this
view of the matter, the defendant No.4, who had been kept out of
possession of not only fat No.102 but also fat No. 101, of which
she was shown to be exclusive owner, cannot be made to pay
maintenance charges.
28. This takes me to the consequences which emanate from the
death of defendant No.4. The defendant No.4 expired on 1 st
December 2016. Pursuant thereto, the plaintiffs have brought
defendant No.2 Lajpatrai Chawla as the legal representative of
deceased defendant No.4 being a legatee under the Will stated to
have been executed by the deceased defendant No.4 on 18 th
August 2004. What is of critical signifcance is the fact that the
plaintiffs claimed that under the said Will dated 18 th December
2004, the defendant No.4 bequeathed her undivided half share in
fat No. 102 to the plaintiff No.1. Thus, the Will is propounded by
the plaintiffs to claim exclusive ownership over fat No. 102. Once
the claim for absolute ownership qua fat No. 102 is laid, the
Shraddha Talekar, PS 21/22
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edifce for seeking contribution towards the repayment of loan and
maintenance charges to the extent of fat No.102 gets dismantled.
29. The thrust of the submission on behalf of the plaintiffs that
on account of the failure of defendant No.1 to satisfy the decree of
permanent alimony, the plaintiffs are deprived of the means to
sustain themselves and defray the expenses including the
maintenance charges, may carry some substance qua defendant
No.1. However, having regard to the nature of the instant suit, the
aforesaid prayers, which were especially sought against the
defendant No.4, do not merit countenance. The plaintiffs are,
however, at liberty to work out their remedies against defendant
No.1 emanating from the decree passed by the US Court or
otherwise.
30. The conspectus of the aforesaid consideration is that the
plaintiffs are not entitled to any of the reliefs claimed in this notice
of motion.
31. Hence, the following order :
ORDER
The Notice of Motion stands dismissed.
Costs in casuse.
(N. J. JAMADAR, J.)
Shraddha Talekar, PS 22/22
