SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2678 OF 2007 IN NOTICE OF MOTION NO.1820 OF 2007 IN SUIT NO.2441 OF 1990 Juhu Consumers Stores Ltd. ...Plaintiff Versus Mohammed Ayyaz Mohammed Abdul @ Mohammed Ayyaz Shaikh & Ors. ...Defendants And The Court Receiver, High Court, Bombay. ...Respondent ...... Mr.R.V.Govilkar for Plaintiff. Mr.Ashok Mishra for Defendant No.1. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 25, 2008. AUGUST 25, 2008. AUGUST 25, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. According to the Plaintiff, the Defendants have no right of audience on account of their : 2 : conduct noted by this Court while initiating contempt action and punishing the Defendants therefor. Learned Counsel for the Defendants on the other than points out that the Defendants have already carried the matter in Appeal against the said decision holding the Defendants were liable to be punished for committing contempt of Court. According to Mr.Govilkar, the Defendants cannot be heard also for the reason that they have not surrendered inspite of specific direction given by the Supreme Court in that behalf. 3. Be that as it may, the question is: whether the Plaintiff has made out ground for review of the order dated 4th July 2007 passed in Notice of Motion No.1820 of 2007. The said order reads thus: "1. None appears for the Plaintiff. I am in agreement with the stand taken by the Counsel for the Defendants that the relief claimed in the present Motion is replication of the reliefs claimed in the earlier two Notices of Motion No.2131 of 1997 and 1337 of 2005, which have already been rejected on 9th August 2001 (Justice F.I.Rebello) and on 8th December 2005 (Justice P.V.Kakade) respectively. Accordingly, Plaintiff cannot be permitted : 3 : to reagitate the same reliefs by way of present Notice of Motion. Hence, dismissed." 4. According to the Plaintiff, the order passed by me on 4th July 2007 was essentially due to absence of Plaintiff, ought to be set-aside and the Plaintiff be given opportunity to contest the said Motion on its own merits. On plain reading of the order which is reproduced earlier, though it is passed in absence of the Plaintiff, deals with the objection taken by the Defendants at hearing of the said Motion. I have accepted the said objection as is recorded by me in order dated 4th July 2007-that the Plaintiff had asked for similar reliefs on the earlier occasion which has been rejected in terms of orders dated 9th August 2001 and 8th December 2005. In the present Motion (No.2678 of 2007), the Plaintiff seeks following reliefs: "(a) That the exparte order dated 4.7.2007 dismissing the Notice of Motion No.1820 of 2007 be set aside; (b) That the Notice of Motion No.1820 of 2007 be restored to file and heard on merits; (c) That su-motto actions be taken against : 4 : Advocate Mr.Ashok Mishra for making incorrect statement before High Court that plaintiffs earlier Notice of Motion was "rejected" by High Court to obtain an exparte order dt.04.07.2007; (d) Ad-interim order in terms of prayer clause (a) (b); (e) Costs of this Notice of Motion be provided for; and (f) For such further and other reliefs as the nature and circumstances of the case may require." 5. I shall immediately juxtapose the reliefs claimed by the Plaintiff in the earlier two Motions being Notice of Motion No.2131 of 1997 and 1337 of 2005 with the prayers on Notice of Motion No.1820 of 2007. The same read thus: IN NOTICE OF MOTION 2131/1997 "(a) The defendants be directed to deposit defaulted compensation along with Rs.3,33,157.96 or such other amount towards the costs, maintenance, Out Goings in respect of the suit premises referred to above,and plaintiffs be permitted to withdraw the same. (b) The Receiver be further directed to appoint the plaintiff as his agents in respect of the suit shop premises admeasuring about 141.55 Square feet on the ground floor on the southern side of the plaintiff’s premises situated at JVPD : 5 : Scheme, Juhu Vile Parle Bombay 400 049, without payment of any cost or charges. (c) For the cost of this Notice of Motion. (d) For such other and further reliefs as the nature and circumstances of the case may require." IN NOTICE OF MOTION NO.1337/2005 "(a) Defense of defendants be "Strike off" as defendants have failed to comply several orders passed by this Hon’ble Court. (b) That the Court Receiver,High Court be directed to Recover from defendants or third parties a sum of Rs.22,61,517=00 Out standing as per order dated 14th Dec 2004 passed by Justice Aguiar. (c) Pending the hearing and final disposal of this notice of motion plaintiffs be permitted to use Suit shop as "Fast food & Snacks bar" with-out paying any Royalty. (d) Pending and hearing final disposal of this notice of motion,court Receiver be directed to hand over plaintiffs money accumulated with Court Receiver office in suit account. (e) That any such other and further orders are passed as the facts and circumstances of the case may require." IN NOTICE OF MOTION NO.1820 OF 2007 "a) The Plaintiffs be appointed as the agent of the Court Receiver and the possession of the suit premises, which is presently with the Court Receiver,be handed over the Plaintiffs without any : 6 : royalty. b) The Court Receiver be ordered and directed to recover the arrears of outstanding of Rs.29,54,251.50/- as on 31/12/2006 from the defendants and outstanding from 31.12.2006 till actual payment. c) The Defence of the Defendants be struck off. For violation of breach of the orders dated 14th December 2004 of this Hon’ble Court. d) Pending the hearing and final disposal of the suit,the possession of the suit shop be handed over to the plaintiffs. e) Pending the hearing and final disposal of this Notice of Motion,the Court Receiver be directed to hand over to the Plaintiffs money accumulated with the Court Receiver office in suit account. f) Ad interim reliefs in terms of prayer clauses (d) and (e) above; Costs of this Notice of Motion be provided for; and g) For such further and other reliefs as the nature and circumstances of the case may require." 6. Insofar as relief in terms of prayer clause (a) of the Notice of Motion No.1820 of 2007 is concerned, that relief was specifically prayed in Notice of Motion No.2131 of 1997 and has been negatived in terms of order dated 9th August 2001. Insofar as relief in terms of prayer clause (b) of : 7 : that Motion is concerned, the Plaintiff had asked for similar relief in terms of prayer clause (b) of Notice of Motion 1337 of 2005, however, for the overlapping period. Insofar as reliefs in terms of prayer clause (c) of the same Motion, that was specifically asked in Notice of Motion No.1337 of 2005 in terms of prayer clause (a) thereof. In that sense, there is no ground for review of my order dated 4th July 2008 wherein I had said that the Plaintiff is not entitled to seek the same reliefs which were already considered and rejected in terms of order dated 9th August 2001 and 8th December 2005 respectively. 7. The only argument canvassed before this Court by the Plaintiff is that what has been overlooked by this Court is the subsequent events referred to in Paragraphs 23 to 25 of the affidavit in support of Notice of Motion No.1820 of 2007. Insofar as averments in paragraph 23 of the said affidavit are concerned, that deals with event anterior to the order passed on Notice of Motion No.1337 of 2005 dated 8th December 2005. It refers to the fact of breaking open the doors of the suit : 8 : shop on 17th August 2005. That fact was known to the Plaintiff even at the time of earlier Notice of Motion No.1337 of 2005 which was decided on 8th December 2005. My attention was then invited to paragraph 24 of the said Notice of Motion, which, however, nowhere mentions that there were subsequent events which would have material bearing on order passed by this Court in Notice of Motion No.1337 of 2005 dated 8th December 2005. The event that Defendant No.1 took out Notice of Motion No.3498 of 2006 and order passed therein, does not take the matter any further. Inasmuch as, those events cannot be the basis to reopen the argument of the Plaintiff for the same relief which were claimed in the earlier two Notices of Motion. Mr.Govilkar then placed strong reliance on the averments in paragraph 25 of Notice of Motion No.1820 of 2007. Once again, the events which are referred to in the said affidavit were already known to the Plaintiff when the earlier Motion was moved by the Plaintiff being Notice of Motion No.1337 of 2005 which is decided on 8th December 2005. : 9 : 8. Mr.Govilkar then placed reliance on the order passed by Justice Aguiar on 21st December 2004 in show-cause notice No.1174 of 2004 which indicates that the Court Receiver was directed to take back the possession of the shop premises from the Defendant No.1. The fact remains that even this order which is now referred to was very much available to the Plaintiff when the previous Notice of Motion No.1337 of 2005 was filed or for that matter, decided by this Court on 8th December 2005. It is not a subsequent event at all. None of the events, Plaintiff would like to press before this Court can be said to be subsequent events which have unfolded after the order was passed on Notice of Motion No.1337 of 2005 on 8th December 2005. 9. In this view, the question for review of my order dated 4th July 2007 does not arise at all. As no ground for review has been made out, Motion is dismissed with costs. 10. After this complete order is dictated, now Mr.Govilkar points out that Notice of Motion No.2131 of 1997 was not decided on merits, but was : 10 : dismissed for non-prosecution. The fact remains that the said order has not been challenged. Besides, the said Motion was dismissed for non-prosecution as back as on 9th August 2001; and cannot be said to be subsequent event, after the disposal of the Notice of Motion No.1337 of 2005 on 8th December 2005. The Plaintiff has been ill-advised to take up this contention in the present Motion. If the Plaintiff so desired, he ought to have challenged the orders passed in the respective Notices of Motion dated 9th August 2001 and 8th December 2005 which the Plaintiff has not chosen to do. 11. Suffice it to observe that no ground for review is made out. Hence, rejected. A.M.KHANWILKAR, J.