1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3253 OF 2008 IN SUIT NO.1970 OF 2005 Vivek Parshotam Bajaj ..Plaintiff V/s. Anil Parshotam Bajaj & ors ..Defendants Mr.V.V.Khemka, Advocate, for the plaintiff Mr.Anil P. Bajaj, applicant/defendant No.1 in person Mr.Anil D'souza, Advocate, for the defendant No.4 Mr.Simil Purohit a/w.Ms.Janhavi Durve i/b.K.Ashar & Co., Advocate, for the defendant No.3 Mr.Pankaj Shah, Advocate, for the defendant No.5 CORAM : R.M.SAVANT, J. DATE : 18TH OCTOBER, 2008 P.C. . The above Notice of Motion has been filed by the original defendant No.1 to the suit. The suit has been filed by the original plaintiff, Vivek Bajaj for partition of the properties which are alleged to be the joint family properties. One of the properties is the property known as “Usha Villa” situated at 24, Linking Road, Santacruz(W), 2 Bombay. 2. The applicant/defendant No.1 has sought the following reliefs in the above Notice of Motion. (a) To declare, divide the property Usha Villa, 24, Linking road, Santacruz West between the registered owners : My father and the defendant Nos.2 to 5 giving them all of equal undivided right, title and interest in respect of one floor each of the said properties Usha Villa, partitioning the same by metes and bounds 1/5th share in respect thereof; And since my father is no more his share equally between me and my brother the plaintiff in the interest of justice and equity. So that records can be modified in various Government Departments the Sub-Registrar, Municipality, Water Supply and electricity and all the bills start coming in the individual names. (b) Defendant No.3 be also ordered, decree and directed to make true, faithful particulars of all Business done by me, for the firm Asian Electricals and directed to pay me the profit or Salary what ever the court deems fit, along with interest at the rate of 18% per annum from such date as this Hon'ble Court may deem fit and proper. (c) That pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay, be appointed Receiver of the 1st floor, Usha Villa, 24 Linking Road, Santacruz(W), Mumbai – 400 054 with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the power to take possession of the said premises and to make report with regard to the status of the said properties and deal with it as this Hon'ble Court may deem fit and proper. (d) Direct the defendant No.3 to pay all my liabilities on this 3 property including the present bill amount to over Rs.26 lacs along with the amounts I would have made if he had allowed me to use the property, as he is not allowing me to use the properties which are in my father's name since the last 15 years till date, for profit and gain. (e) Give me the keys to my father's office at 758/2, Neel Kiran, S.V.Road, Khar, Mumbai – 400 052 and allow me and my staff or assignees to use the premises. 3. The plaintiff and the defendant No.1 are the real brothers and the sons of one Parshotam Bajaj. The other defendants are the brothers of the said Parshotam Bajaj. i.e.uncles of the plaintiff and the defendant No.1. The said Parshotam Bajaj died in the year 2nd June, 2003. It appears that pursuant to Exh.D to the plaint which is a document evidencing a family arrangement. The said Usha Villa was occupied by different branches of the Bajaj family i.e.Parshotam Bajaj and his brothers. In terms of the said arrangement, Parshotam Bajaj came to occupy the entire 6th floor of the said Usha Villa and the other brothers were occupying the other floors except the ground floor wherein the shops were to be constructed. It appears that after the death of the said Parshotam Bajaj, the applicant herein came to occupy the right hand side of the 6th floor of the said Usha Villa and 4 the other portion on the 6th floor was occupied by the plaintiff. 4. It would be relevant at this stage to advert to the contents of the Notice of Motion No.2084 of 2005 filed by the original plaintiff herein claiming certain reliefs in respect of the various premises in the said Usha Villa. The said Notice of Motion came to be disposed of by the learned Single Judge of this Court D.K.Deshmukh, J. dated 11th December, 2006 and this Court found it fit to appoint the Court Receiver only in respect of the ground floor and basement. It would also be relevant at this stage to advert the contents of Notice of Motion No.322 of 2007 filed by the present applicant, Anil Bajaj in the said suit. The applicant herein confined himself to prayers (b) and (d). By prayer clause (b), the applicant had sought an Order directing the defendant No.3 and his son and defendant No.5 to give him the money to complete the construction of the shops and compound. In prayer clause (d), the applicant had sought an Order directing the Court Receiver to hand over possession of the shops and to allow him to complete the construction of the same from the 5 money's referred to in prayer (b). The said Notice of Motion came to be disposed of by a learned Single Judge of this Court by Order dated 22nd February, 2008 observing that looking to the nature of the reliefs sought by the applicant, the same cannot be granted at the interlocutory stage. 5. In the instant Notice of Motion also a perusal of the reliefs sought discloses that the reliefs sought are virtually the final reliefs which can be granted in the suit and no reliefs which can be granted at an interlocutory stage. In so far as prayer clause (d) is concerned, the record indicates that the applicant is in occupation of the right hand side of the 6th floor in his capacity as an heir of the said Parshotam Bajaj. The relief in terms of prayer clause (d) therefore cannot be granted. The applicant at the interlocutory stage virtually wants this Court to ignore the family arrangement Exh.D to the plaint and permit the applicant to act contrary to the family arrangement. The reliefs sought cannot be countenanced. Another aspect to be considered is that the applicant is not the plaintiff. The reliefs sought by the applicant also do not fall within the scope of the final reliefs 6 prayed for in the said suit. On the said ground no reliefs can be granted to the applicants. 6. Considering the Orders passed earlier in the said two Notice of Motions being 2084 of 2005 dated 11th December, 2006 as also the Order dated 22nd February, 2008 in Notice of Motion No.322 of 2007 and considering the dispute in the said suit, no reliefs can be granted to the applicant in the above Notice of Motion. The above Notice of Motion is accordingly rejected. (R.M.SAVANT, J.)