-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1666 OF 2008 IN SUIT NO. 1262 OF 2008. Mohammed Moosa s/o Mohammed Osman. ..Plaintiff. Versus Mohammed Yousuf s/o Mohammed Osman & Ors. ..Defendants. Mr. Bharat Vaishnawa i/b M/s. N. N. Vaishnawa & Co., for the plaintiff. Ms. Anita Castileno i/b S. M. Kazi for defendant nos. 1 & 2. Mr. Satish Kamat for defendant no.3. Coram : R. V. MORE, J. Date : February 1, 2010. P. C. : 1. Heard learned counsel for the plaintiff and the defendants. The plaintiff has taken out this notice of motion for following reliefs. “(a) That, pending the hearing and final disposal of the suit, the Court Receiver, High Court Bombay be appointed as Receiver with all powers under Order 40 Rule-1 of the CPC, 1908 in respect of the suit property, i.e., at Deonar Abattoir bearing Survey No.93 of Deonar Village Plot No. 57, bearing CTS No.1 of Deonar village, Mumbai admeasuring about 675.40 sq. meters or thereabout as described in Exhibit-A to the plaint, to safeguard the same as well as to safeguard the interest of the plaintiff. (b) That, pending the hearing and final disposal of the suit, this Hon’ble Court by a temporary injunction may be pleased to restrain the defendants, their agents and/or servants or anybody claiming through them, either from surrendering the suit property, i.e., at Deonar Abattoir bearing Survey No.93 of Deonar Village Plot No.57, bearing CTS No.1 of Deonar village, Mumbai admeasuring about 675.40 sq. meters or thereabout described in Exhibit-A to the plaint, to the BMC and/or creating any right or interest in respect thereof, in favour of anybody by way of sub-lease or assignment of the leasehold interest or by way of tenancy or leave and licence or any interest of any nature whatsoever, under any agreement or arrangement or whatsoever nature.” -: 2 :- 2. The plaintiff has filed the above suit mainly for permanent injunction restraining the defendants either from surrendering the suit property to BMC or creating third party interest therein. Admittedly, the suit property belongs to the BMC. In the year 1986 it was allotted to the partnership firm by name Quality Animal Casing Expoerters. There is no dispute that the plaintiff and the defendants were the partners of the said firm. The specific case of the plaintiff is that it was agreed between the partners that the plaintiff will relinquish his share in the partnership firm for consideration of an amount of Rs.10 lacs to be paid by the defendant nos. 1 to 4, and this amount as agreed was not paid and on the contrary the defendants are likely to create third party interests in the suit property. 3. In reply the defendants have filed affidavit of Mr. Mohammed Shareef, the defendant no.4. It is the case of the defendants that they have paid an amount of Rs.12,30,000/- to the plaintiff, who retired pursuant to the deed of retirement executed on 18th August 1998 and therefore there is no merit in the suit. 4. Having heard the learned counsel for the respective parties and having gone through the pleadings alongwith the documents annexed thereto, prima facie I am of the opinion that the notice of motion is devoid of merits. 5. The deed of retirement is annexed at Exhibit-1 to the affidavit-in- reply of Mr. Mohammed Shareef. The deed of retirement is executed on -: 3 :- 18th August 1998. In the said deed of retirement the name of plaintiff is shown at serial no.1. Under recital (1) of the said deed of retirement it is agreed and declared that the parties of First to Third parts therein had retired from the partnership firm with effect from 31st July 1998. Under recital (2), the parties have drawn up the accounts of the suit firm upto the date of retirement and a copy of the balance sheet was agreed to be drawn up setting out all the assets and liabilities of the suit partnership firm as on the date of retirement. The parties of the Fourth to Sixth parts took over the business of the suit partnership firm as going concern including all the assets and liabilities and the accounts of the parties of the first to third parts were also settled. This deed of retirement is signed by all the partners, including the plaintiff alongwith two other witnesses. Annexure at Exhibit-2 to this affidavit-in-reply is the receipt signed by the plaintiff which discloses that the plaintiff has received an amount of Rs.12,30,000/- towards his share as well as goodwill on retirement from the partnership firm. The cheque for an amount of Rs.12,30,000/- in favour of the plaintiff dated 21st August 1998 drawn on State Bank of India is also annexed. Exhibit-4 is the letter dated 14th August 1998 sent by the plaintiff to the Manager of the State Bank of India. In this letter the plaintiff has admitted that initially there was dispute between the parties however those disputes have been settled amicably and therefore he requested the bank to withdraw his previous application for stopping the transactions. -: 4 :- 7. Mr. Viashnava, learneed counsel for the plaintiff by filing rejoinder disputed the plaintiff's signature on the deed of retirement and receipt. However, the deed of retirement and receipt were executed long back in the month of August 1998. The plaintiff has not so far taken any action to challenge the same. The plaintiff admitted having received an amount of Rs. 12,30,000/- but deny that the same was towards his share in the suit partnership firm. The plaintiff has not produced any other documentary evidence to show that the said amount was towards any other dues. The letter dated 14th August 1998 to the Bank if read along with the deed of retirement and receipt then there is no doubt in my mind that the plaintiff retired from the suit firm after accepting an amount of Rs. 12,30,000/-. Taking over all view of the matter, I find that the plaintiff failed to make out any prima facie case or that balance of convenience lies in his favour. Notice of motion is therefore dismissed. 8. It is expressedly made clear that the observations made above are prima facie and tentative in nature and made only for the purpose of disposing of this notice of motion. The Court deciding the suit finally shall decide the same on its own merits without being influenced in any manner by the above observations. (R.V. MORE, J.)