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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

jmi

NOTICE OF MOTION NO.1010 OF 2009

IN

SUIT NO.3428 OF 2008.

Dilip Ramanlal Mehta.

..Plaintiff.

vs.

Madhukant J. Shah.

..Defendant.

WITH

NOTICE OF MOTION NO.1902 OF 2009

IN

SUIT NO.3428 OF 2008.

Dilip Ramanlal Mehta.

..Plaintiff.

vs.

Madhukant J. Shah.

..Defendant.

And

Arvind Parmar.

..Applicant.

....

Mr. Tushar Goradia, a/w. Y.K. Tiwari, a/w. Anand Kumar Singh, for

Plaintiff.

Mr. Sanjay Sandhan, for Defendant.

Mr. Ram Apte, Senior Counsel, a/w. Ms. Anjali Helekar, i/b. Neel

Helekar, for Applicant in Notice of Motion No.1902/2009.

....

CORAM : S.J.KATHAWALLA, J.

DATE : 18TH JUNE 2009.

P.C.

The suit is filed by the plaintiff against the defendant for the

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following reliefs :-

(a) It be declared that the partnership business

carried on under the name and style of M/s.

Siddhivinayak Enterprises between the plaintiff

and the defendant by virtue of patnership deed

dated 19

th August 2003 stands dissolved as and

from the date of the filing of this suit or from such

other date as this Hon’ble Court may deem fit and

proper;

(b) That the said partnership between the plaintiff

and defendant known as M/s. Siddhivinayak

Enterprises be wound up and the accounts thereof

be taken under the directions of this Hon’ble

Court on the footing of willful defaults on the part

of the defendant.

2.

On 30

th January 2009, this Court had disposed of Notice

of Motion No.4325 of 2008 taken out by the plaintiff in the suit,

whereunder the defendant was asked to maintain status-quo and the

defendant was also directed to keep accounts of the Firm and render it

to the plaintiff if demanded.

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3.

On 15

th April 2009, an application by way of Notice of

Motion No.1010 of 2009 was made by the plaintiff before this Court,

alleging that the defendant has created third party rights in respect of

the suit premises. The defendant through his Advocate did not

dispute the grievance made by the plaintiff and admitted that he has

inducted a third party in the suit premises after the order of stutus-quo

was passed by this Court. However, he submitted that the defendant’s

friend is kept in the premises alongwith the defendant without

payment of any rent, fee or charges. The defendant sought time to file

his reply, which was granted.

4.

On 7

th May 2008, the defendant submitted his affidavit,

wherein it was stated that he had parted with possession of the suit

premises to the extent of allowing Mr. Parmar to use the same

alongwith him. In the said affidavit, the defendant had not mentioned

whether the said Mr. Parmar had vacated the premises. It was

submitted on behalf of the plaintiff that though Mr. Parmar is not to

be seen in the suit premises, there are some other persons inducted in

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the suit premises. The defendant admitted that there were other

persons in the suit premises and submitted that they were inducted by

the said Mr. Parmar. This Court, therefore, at the ad-interim stage

appointed Court Receiver of the suit premises with directions to take

forcible possession of the suit premises and sealing the same.

5.

The present Notice of Motion No.1902 of 2009 is taken

out by the said Mr. Parmar pointing out that the suit filed by the

plaintiff against the defendant is a collusive suit and in fact, there is

no partnership between the plaintiff and the defendant. The

partnership was between the plaintiff and the wife of the defendant

who expired on 21

st July 2004. It is submitted therefore that the

plaintiff could never have filed the above suit against the defendant for

reliefs set out hereinabove. It is submitted that the applicant is in

possession of the suit property much prior to ad-interim order passed

by this Court on 30

th January 2009 and collusive orders are obtained

by this Court only by mis-representing facts bef