(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Order below office note in CA NO.12373/2011 WITH CA NO.12375/2011 WITH FA NO.3608/2011 :
Through this note, Registry has brought to our notice that in our order dated 21.2.2012 in Civil Application No.1495/2012 in First Appeal No.3608/2011, we had permitted the applicant to delete Smt. Sushila D. Mehta who happened to be respondent no.4. Instead we had described her as respondent no.5. The order in question shall stand corrected accordingly. Note is disposed of accordingly.
ORDER BELOW CA NO.12373/2011 This application is filed by the appellant original plaintiff. His Special Civil Suit No.128/2002 having been dismissed, he has preferred First Appeal No.3608/2011. Such appeal came to be admitted on 26.12.2011. In the Civil Application for stay on the same day, Division Bench of this Court passed following order :
"Let the matter appear on January 18, 2012. Notice upon respondent No.5 in the meantime.
After hearing the learned counsel for the parties and after taking into consideration the fact that during the pendency of the suit, out of which the present appeal arises, the plaintiff was enjoying an interim order directing the respondent to maintain status-quo in respect of the property mentioned in the application viz. Shed No.275, 296 situated at Chitra GIDC Estate, Bhavnagar along with the machinery lying therein as well as Plot No.158 situated in the area known as Haryana Plot, Aatabhai Road, Bhavnagar city, let the said order of status-quo be maintained till next date of hearing. Affidavits in the meantime."
Subsequently, when this Civil Application was placed before us, we had desired that opponent no.2 should make certain disclosure with respect to a plot situated in GIDC Chitre, District Bhavnagar. We had therefore, passed following order :
"After hearing the Civil Application for some time, we find it necessary to enquire further into certain factual aspects of the matter. For the above purpose, opponent No.2 shall file an affidavit giving details of the plots leased to opponent No.1 firm situated in GIDC Chitre, Dist: Bhavnagar. Such details shall include the current status of the plots/sheds as also whether such properties are encumbered or unencumbered and if encumbered to what extent and in whose favour. Such affidavit may also disclose rough valuation of the properties and the basis on which such valuation is arrived at. The deponent shall also disclose whether there are any dues of the GIDC outstanding against the firm as also the approximate recurring charges that the GIDC raises against the firm periodically.
S.O.
to 13th March 2012."
Pursuant to such order, an affidavit dated 7.3.2012 came to be filed by Shri Rajesh Dhirajlal Mehta, the respondent no.2. In the affidavit, he has stated that the land in question situated at plot no.296, GIDC Chitre is admeasuring 1358.71 sq. mtrs. It is further stated that a plot situated in the same estate was, as on December 2011, valued at Rs.5500/- per sq. mtr. by GIDC. GIDC has raised a bill for outstanding amount of Rs.1,79,876/- from respondent no.1 firm. Such amount has also been paid over by the respondents. It is further stated that such property is free from all encumbrances and there are no outstanding dues as on the date of filing of the affidavit.
From the affidavit it appears that another plot/shed no.C-275, GIDC Chitre has already been transferred by GIDC for non-payment of its dues.
On the basis of such additional disclosure made before us, we have heard learned counsel for the parties.
Counsel for the applicant submitted that the interim stay granted previously should be confirmed without any modification.
On the other hand, learned senior counsel Shri Soparkar for the respondents original defendants submitted that the applicant having failed in the suit, no case of injunction is made out.
From the record, it emerges that in addition to the industrial plot allotted to the respondent no.1 firm situated at GIDC Chitre, opponent no.6 is owner of a residential bungalow, situated at plot no.158, Hariyana plot, Atabhai road, Bhavnagar.
In facts and circumstances of the case, we are inclined to confirm the interim order qua the industrial shed situated in GIDC but vacate the same insofar as residential plot/bungalow is concerned. We are prima facie of the opinion that the suit claim along with interest would be substantially covered by the industrial plot on the basis of valuation presented before us which is not seriously disputed.
Under the circumstances, ad-interim order of status-quo granted previously qua plot no.296A GIDC Chitre is confirmed with further direction that the respondents shall not sale, transfer, encumber or in any manner create any charge over the industrial shed situated at 296A, Chitre GIDC estate, Bhavnagar, which is allotted to respondent no.1 firm, till the final disposal of the appeal.
Counsel stated that the respondents have agreed to pay periodical dues of GIDC on such property towards maintenance and other charges and also stated that they would oppose the notice of GIDC for eviction of property which was issued only for non payment of outstanding bills of GIDC which have now been paid over.
In view of above directions and statements made before us, status-quo granted qua the residential bungalow of the ownership of respondent no.6 is vacated. Status-quo qua shed C-275,GIDC Chitre would not survive.
It will be the duty of the respondents to bring to the knowledge of the Court if any of the bills of GIDC remain outstanding beyond the period granted for payment of such bills. With liberty to apply to both the sides in case of difficulty, Civil Application is disposed of. Rule made absolute to above extent.
ORDER BELOW FA NO.3608/2011 :
Since the learned counsel Shri Amar Bhatt waives notice on behalf of newly added respondent no.6, it would not be necessary for the Registry to issue separate notice to such respondent.
(Akil Kureshi,J.) (C.L.
Soni,J.) (raghu) Top