1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3957 OF 2006 IN SUMMARY SUIT NO. 2443 OF 2000 Shri Jaisukh T. Manek ....Plaintiff Versus Mamta Pankaj Dharia & Ors. ....Defendants Mr. Bharat Vaishnawa i/b. M/s.N.N.Vaishnawa & Co. for the Plaintiff. Mr. H. S. S. Murthy a/w. Ms. Parekh i/b. R. T. Parekh for Defendants. CORAM : R. V. MORE, J. DATE : 23RD NOVEMBER, 2009. P.C. : This notice of motion is taken out by Defendant No.1 for the following relief: “(a) That this Hon’ble Court be pleased to direct the Ld. Prothonotary & Senior Master, to hand over the Passport of the Defendant No.1 being Passport No.M882701 dated 25-11-1992 on such terms and conditions as this Hon’ble Court may deem fit and proper. 2 2. The Plaintiff has filed the above suit under the provisions of Order 37 Rule 2 of the Code of Civil Procedure, 1908 for recovery of an amount of Rs.3,20,767/- together with interest at the rate of 21% on the principal amount of Rs.2,50,000/- from 1st January, 1999 till the filing of the suit, from the estate of the deceased – Pankaj Punamchand Dharia. The said Pankaj Dharia expired on 23rd October, 1998 prior to the filing of the suit. The Defendant No.1 is the widow and Defendant Nos.2 & 3 are the children of the deceased - Pankaj Punamchand Dharia. It is the case of the Plaintiff that he lent and advanced a sum of Rs.2,50,000/-on 11th January, 1998 to the said deceased - Pankaj Punamchand Dharia and the said Pankaj Punamchand Dharia issued three promissory notes, two for Rs.1,00,000/- each and third one for Rs.50,000/-. On the basis of the above allegation, the above summary suit is filed. 3. The Plaintiff took out summons for judgment and the Defendants asked for leave to defend the suit. This Court after hearing the respective parties by an order dated 20th January, 2003 granted unconditional leave to the Defendants to defend the suit. 4. Prior to the above date, the Plaintiff took out notice of motion no. 1842 of 2000 in the above suit. By an order dated 24th May 2000, the learned Single Judge restrained the Defendants from disposing their flat situated at Shirin Apartments. A statement of Defendant No.1 was also recorded to the effect that she does not have any intention to dispose of the said flat and to go abroad. The learned Counsel then appearing for the Defendant No.1 on instructions 3 agreed to deposit the passports of all the Defendants and thereafter, the learned Single Judge directed the Defendants to deposit their passport with the Prothonotary and Senior Master within one week. By subsequent order dated 29th June, 2000 the notice of motion was dismissed. 5. By an order dated 17th July, 2001 passed in the notice of motion no. 1404 of 2001, the passports belonging to Defendant Nos.2 & 3 were returned to them as Defendant no.2 was the citizen of the United States and Defendant No.3 wanted to go abroad for education. 6. It is not disputed by the learned Counsel for the Plaintiff that the above property i.e. flat in Shirin Apartments, is already attached by this Court under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908 in sister proceedings. A common statement is made by the learned Counsel for the respective parties that the Court Receiver, High Court, Bombay is also appointed as a Receiver in respect of the said flat and the Defendant No.1 is also appointed as an agent of the Court Receiver. 7. Now, the present notice of motion is filed by the Defendant No.1 for return of the passport on the ground that she wants to visit her ailing son who is in the United States. The said request is opposed by the learned Counsel for the Plaintiff on various grounds. He submitted that the deceased husband of the Defendant No.1 duped several persons and therefore, nearly about 40 suits have been filed in this Court for the recovery of amount against the said 4 Defendant. He submitted that the only property left behind by the deceased- husband is the flat in Shirin Apartment at Tardeo. He expresses apprehension that if the passport of the Defendant No.1 is returned to her, she will leave India and may not probably come back, and thereby the rights of the Plaintiff will be defeated. He also invited my attention to the Order dated 24th May, 2000 passed in the notice of motion no. 1842 of 2000. He further invited my attention to the order dated 10th May, 2000 passed by the learned Single Judge in the draft notice of motion in summary suit no. 2084 of 2000, which order is annexed at Exhibit-D on page 32 to the affidavit in reply filed by the Defendant No.1 and pointed out the Defendant No.1’s statement that she will not leave India, is accepted. He lastly submitted that in the event, Defendant No.1 leaving India, the proceedings of the suit would be unnecessary protracted. 8. Having considered rival submissions of the learned Counsel for the respective parties and having gone through the affidavit in support of the notice of motion alongwith the reply given thereto by the Plaintiff, I find that the Defendant No.1 is entitled for return of the passport. At the outset, I may mention paragraph 4 of the order under which Defendant No.1’s passport was deposited with the Prothonotary and Senior Master, gave liberty to the Defendant No.1 to apply to the Court for release of the passport as and when the occasion arises. As stated earlier, the suit is filed by the Plaintiff against the Defendants for recovery of an amount of Rs.3,20,767/- together with interest at the rate of 21% on the principal amount of Rs.2,50,000/- from 1st January, 1999 till the filing of the suit, from the estate of the deceased – Pankaj Punamchand 5 Dharia. The statement was made by the learned Counsel for the Plaintiff, that the only property left behind by the deceased is the said flat in Shirin Apartments. The said flat is already attached by this Court in sister proceedings under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908. In addition to this, the Court Receiver is also appointed as a Receiver in respect of the said flat. Thus, the flat is symbolically in possession with the Receiver. In addition to this, the statement of Defendant No.1 also got recorded that she will not dispose of the said flat. 9. As stated above, the suit was filed for recovery of an amount from the estate of the deceased. The Defendants are not personally liable to the loan amount taken by the deceased- Pankaj Dharia. and therefore, even though assuming for the sake of argument that the Plaintiff succeeds in the suit, he will have to execute decree by proceeding against the said flat left out by the deceased- Pankaj Dharia. Thus, in my opinion, the interest of the Plaintiff is well protected and therefore, on that ground, the Defendant No.1 cannot be refused return of the passport. 10. The argument of the learned Counsel for the Plaintiff that various suits will be protracted, also cannot be a ground for refusal of return of the passport. If the Defendants fail to co-operate with the suit by not remaining present, in that case the Plaintiff is always at liberty to request the Court to proceed ex-parte. Regarding the Plaintiff’s argument that Defendant No.1’s statement is already recorded to the effect that she will not leave India, I find that the present 6 notice of motion is only for return of the passort. There is no prayer for permission to leave India. The statement that she will not leave India is recorded in separate suit and therefore, no orders are required to be passed in that respect, in the present proceedings. The Defendant No.1 is the citizen of India and she cannot be deprived of her fundamental right, merely because some suits are pending against her and especially when the interest of the Plaintiff is well protected by the interim order. 11. In the circumstances, I find that the Defendant No.1 has made out a case for return of the passport. The notice of motion is therefore made absolute interms of prayer clause (a). 12. At this stage, the learned Counsel for the Plaintiff requests for stay of this order for a period of two weeks, inorder to enable him to challenge the same. In the facts and circumstances of the case and in the interest of justice, this order is stayed for a period of two weeks, from today. Parties to act upon the authenticated copy of the order. Sd/- (R. V. MORE, J.)