1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1111 OF 2008 IN SUIT NO. 931 OF 2008 M/s. S. Mayabhai & Co. & Anr. ...Plaintiffs Versus M/s. S. S. Corporation & Ors. ...Defendants Ms. Kavita Shah i/b. A. G. Shah for the Plaintiffs. Mr. Sanjay Jain a/w. Ms. Punam Shirgaonkar for Defendant Nos. 1 to 5. CORAM : R. V. MORE, J. DATE : 11TH NOVEMBER, 2009. P.C. : Heard Miss Kavita Shah, learned Counsel for Plaintiffs and Mr.Sanjay Jain, learned Counsel for Defendant Nos. 1 to 5. None appears on behalf of Defendant Nos. 6 to 9. 2. The present notice of motion is taken out by the Plaintiffs for the following reliefs: (a) That pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay or some fit and proper person be appointed as Receiver with all the powers under Order XL, Rule 1 of the Code of Civil Procedure, 1908. 2 (i) of the suit premises being Shop No.144, Radha Gally, Swadeshi Market, Kalbadevi Road, Mumbai – 400 002. (ii) of the suit premises being Godown Nos. 252/253/254 at Gandhi Gully, Swadeshi Market, Kalbadevi Road, Mumbai – 400 032 and (iii)of the suit premises being Godown No.224 at Gandhi Gully, Swadeshi Market, Kalbadevi Road, Mumbai – 400 002. (b) That pending the hearing and final disposal of the suit, the Defendant Nos. 1 to 5, their representatives, agents, servants and employees be restrained by a Order and Injunction of this Hon’ble Court from in any manner dealing with, disposing off, alienating, selling, transferring, encumbering, surrendering or creating third party rights or parting with possession. (i) of the suit premises being Shop No.144, Radha Gally, Swadeshi Market, Kalbadevi Road, Mumbai – 400 002 or any part thereof. (ii) of the suit premises being Godown Nos. 252/253/254 at Gandhi Gully, Swadeshi Market, Kalbadevi Road, Mumbai – 400 032 and (iii) of the suit premises being Godown No.224 at Gandhi Gully, Swadeshi Market, Kalbadevi Road, Mumbai – 400 002 or any part thereof. 3 (c) That pending the hearing and final disposal of the suit, the Defendant Nos.2 & 3, their representatives, agents, servants and employees be restrained by a Order and Injunction of this Hon’ble Court from carrying on business as partners of the Defendant No.1 in the name of Defendant No.1 similar to the business of the Plaintiff No.1 and from the suit premises Nos. I, II & III. (d) Ad-interim reliefs in terms of prayers (a), (b) & (c) above; (e) For costs. (f) For such further and other reliefs as the nature and circumstances of the case may require. 3. The following facts are not disputed that : The Plaintiff No.1 is a partnership firm formed in the year 1991 and was carrying on business of Importers and Exporters and as dealers in cloth, Art silk cloth, cotton piece goods, Art silk yarn etc.. The Plaintiff No.2, Defendant Nos. 2, 3 and 6 to 9 are the Partners of the Plaintiff No.1-Firm. The Plaintiff No.2 has 3% share in the partnership firm, while Defendant Nos. 2 & 3 have 45% share and the remaining Defendants have 52% share in the business of the partnership firm. 4. It is the case of the Plaintiffs that Defendant No.2 to 5 belong to one family and they have started Defendant No.1-Firm on 9th September, 2004. It is further pointed out that the business premises of the Plaintiff No.1 and the Defendant No.1 is one and the same. In this facts, it was submitted 4 that during the subsistence of Plaintiff No.1-Firm, the Defendant Nos. 1 to 5 cannot start their independent business in the premises belonging to the Plaintiff No.1 and thus, they have become trespassers. Regarding the other premises mentioned in clause (ii) and (iii) of prayer clause (a), it was contended that the same belong to Plaintiff No.1 and Defendants cannot utilize the same. 5. In the above circumstances, the Plaintiffs filed suit mainly for declaration that the Defendant Nos. 1 to 5 are trespassers in respect of premises mentioned in the prayer clause (a). The present notice of motion is taken out for the reliefs, which are already mentioned above. 6. The learned Counsel for the Defendant Nos. 1 to 5, per contra submitted that the share of Defendant Nos. 2 & 3 in Plaintiff No.1-Firm is 45% and other Defendants have 52% share, while the Plaintiff No.2’s share is only 3% in the business of the Plaintiff No.1. He further submitted that the Defendant No.1 started business in the year – 2004 and this business was started with the consent of Plaintiff No.2. In this regard, he relied upon the letter dated 19th March, 2003 which is annexed at page 17 of his reply. He also submitted that Plaintiff No.2 and Defendant No.2 are residing in the same place and therefore, it cannot be said that Plaintiff No.2 had no knowledge of independent business of Defendant Nos. 2 to 5. He lastly submitted that admittedly Defendant Nos. 2 and 3 have 45% share in the Plaintiff No.1-Firm and in any case they cannot be termed as trespassers. 7. Having heard learned Counsel for the respective parties, I do not find any merit in the notice of motion. The Defendant Nos. 2 to 5 have started Defendant No.1-Firm in the year 2004. It is not denied by the Plaintiff No.2 5 that he is residing with Defendant No.2 in the same premises. The letter at Exhibit “4” annexed to the reply of Defendant Nos. 1 to 5 is a letter dated 19th March, 2003. This letter is written by Plaintiff No.2 to Plaintiff No. 1. Clause (3) of the letter reads as follows: “ You have an “open choice” to continue the present name and style of the company after considering the “GOODWILL” as finalised and agreed upon through the Arbitrator OR “change the name of the company” if the present business is to be continued after the retirement of the other intending partners.” 8. None of the other Defendants have taken objection to the Plaintiff No.2 starting independent business in the premises belonging to Plaintiff No.1. In fact, all the Defendants are carrying independent business from the premises of the Plaintiff No.1. The above letter dated 19th March, 2003 and the fact that the Plaintiff is staying with Defendant No. 2 gives only impression that Defendant Nos. 1 to 5 are carrying business with the consent of the Plaintiff No.2. In any case, the Plaintiff No.2 had knowledge of independent business in the year 2004 itself. However, the present suit is filed in the year 2008. There is absolutely no material on record to corroborate the Plaintiff No.2’s contention that he came to know about the independent business of Defendant No.1 in the year 2007. 9. Be that as it may, the Defendant Nos. 1 to 5 cannot be termed as trespassers in the premises belonging to the Defendant No.1 in as much as it is admitted that Defendant Nos. 2 & 3 have 45% share in the business of the Plaintiff No.1. The business of Plaintiff No.1 has stopped long back. Taking totality of the circumstances into consideration, I do not find any 6 case for grant of interim reliefs. The notice of motion is accordingly, dismissed. 10. It is expressly made clear that above observations are prima-facie and are made for the purpose of disposal of this notice of motion. The suit shall be decided independently on its own merit and without being influenced by the order passed in this notice of motion. 11. The learned Counsel for the Plaintiffs, submits that the Plaintiff No.2 is a senior citizen who is 70 years old and therefore, requests for expeditious hearing of the suit. Since the Plaintiff No.2 is a senior citizen, the hearing of the suit be expedited. The Office is directed to place the suit for expeditious hearing under the caption of “Senior Citizen”. Sd/- (R. V. MORE, J.)