Written Statement of Defendant No.8 Mr. Arvind Umarshi Shah

 

1

BEFORE THE HON’BLE CIVIL COURT (J.D.) AT KHALAPUR AT DIST :- RAIGAD, REGULAR CIVIL SUIT NO. 99 OF 2017

   

Mr. Balu Tushiram Favde (Patil)

….. Plaintiff 

V/s.    

Mr. Machindra Narayan Kashid & Ors.

….. Defendants

WRITTEN STATEMENT OF DEFENDANT NO.8 MR. ARVIND UMARSHI SHAH  :-

A.

GENERAL  The Suit is opposed. The suit is false, frivolous, vexatious and not mainta maintaina inable ble eit either her in law on facts facts as frame framed d and filed filed..

The

plaintiff was not complied with imperative provisions of The Code of  Civil Procedure, 1908 in general, and of Orders 7 Rule 1 thereof in particular, at the time of institution of the present suit. The suit therefore, deserves to be dismissed in limine. The Defendants states that the plaintiff has no locus to file the said suit, as the plaintiff has no authority or right to file the same.

a.

Th This is de defe fend ndan antt fur furth ther er su subm bmit its s tha thatt the pl plai aint ntif ifff has n no o tit title le in the suit property and hence the suit is not maintainable and is liable to be dismissed.

b.

Wi Witho thout ut pr prej ejud udic ice e to the abo above ve co cont ntent entio ions ns,, this de defe fend ndan antt further submits that this suit is not maintainable as it is for simplicite simpl iciterr injunc injunction tion and not for clai claiming ming any rights in this

 

2

suit property. Hence, the suit is liable to be dismissed with costs.

c.

Witho hou ut prejudice to th the e above said content ntiions, this his def efen enda dant nt fu furt rthe herr su subm bmit its s th tha at th the e pl plai aint ntiiff is not in poss po sses essi sion on of th the e su suit it pr prop oper erty ty.. Th The e plai plainti ntiff ff is also also no nott havi ha ving ng any ri rig ght ht,, titl title e to th the e su suiit pr pro operty erty as per th the e documents annexed to the plaint. If the plaintiff claims his shar sh are e in th the e su suit it pr prop oper erty ty,, th the e su suit it wi will ll go be beyo yond nd th the e pecuniary jurisdiction of this Hon’ble Court. Hence the above suit is liable to be dismissed with costs.

This Th is de defe fen nda dant nt sh shal alll no now w de deal al wi with th th the e pl plai aint nt as se sett ou outt hereinafter :-

1.

With reference to paras 1 and 2 of the plaint, this defendant st sta ate tes s th tha at th the e co cont nten ents ts th ther erei ein n are no nott kno now wn to th the e Defendant.

2.

With Wi th re refe fere renc nce e to para 3  of the plaint this defendant states that the contents therein are correct.

3.

With th re refe fere renc nce e to para Wi para   4  of the plaint this defendant states thatt the cont tha contents ents the therei rein n are partly  correct. This defendant furt fu rthe herr st stat ates es th that at as far far as oc occu cupa pati tion on of ga gara rage ge by th this is defendant is concerned, it is true that the garage is large but this defendant is in the possession of only one half  of   of its area and in the rest half of the area is occupied by a water tank from which water supply is done for the occupants of entire building.

 

3

4.

With Wi th re refe fere renc nce e to para 5  of the plaint this defendant states that the contents therein are absolutely correct.

5.

  Wit With h refer referenc ence e to para 6 of the plaint this defendant states that the contents therein are absolutely correct.

6.

With Wi th re refe fere renc nce e to para 7  of the plaint this defendant states that the contents therein are absolutely correct.

7.

  Wit With h refer referenc ence e to para 8 of the plaint this defendant states that the contents therein are absolutely correct.

8.

  Wit With h refer referenc ence e to para 9 of the plaint this defendant states that the contents therein are absolutely correct.

9.

With Wit h refere reference nce to para 10 of the plaint this defendant is not aware and have no knowledge of any Power of Attorney given by plaintiff to defendant No.1 to look after the said property  with other general powers. This defendant further states that he is not aware that during the period mentioned in para 10 of  the pl plai aint nt Mr Mr.. Sha Shashi shika kant nt vi visi site ted d In Indi dia a from from Sw Swit itze zerl rlan and. d. Hence denied the same.

10.. 10

Wi With th ref refer eren ence ce to pa para ra 11 of th the e plai plaint nt th this is def defen enda dant nt states that Mr. Shashikant has never followed up with this defendant in respect of his 1/3 rd undivided right, title and

 

4

interest in the suit property therefore, question of giving assurances does not at all arise.

11.  With reference to para 12 of the plaint, this defendant states thatt the ave tha averme rments nts mad made e in thi this s par para a are absol absolute utely ly fal false. se. Hence denied in toto. This defendant further states that this defe de fend ndan antt is no nott aw awar are e wh whet ethe herr pl plai aint ntif ifff is Co Cons nsti titu tute ted d Attorney of my brother Mr. Shashikant J. Moholay and put the plaintiff to the strict proof thereof.

12.  With reference to para 13 of the plaint, this defendant states that the contents therein are incorrect. Hence denied.

13. With reference to para 14 of the plaint this defendant states that he is not aware of any such documents. This defendant is also not aware whether his name was deleted from the share certif cer tifica icate te wit with h eff effect ect fro from m 24th  June, 2002 2002..

With further

refe re fere renc nce e to th the e pa para ra 14 of th the e pl plai aint nt th this is de defe fend ndan antt states that the entire first floor was got vacated by both the defendants from the earlier tenant after paying him (tenant) huge amount. The earlier tenant Dr. Garud was running a Nursing Home and had made some additions and alterations on the first floor and two flats were made into one flat and also made some small rooms according to his conveni convenience ence.. Afte Afterr getti getting ng the vaca vacant nt poss possessi ession on fr from om th the e ab abov ove e sa said id te tena nant nt (D (Dr. r. Ga Garu rud) d) th this is de defe fend ndan antt reinstated the original shape of the first floor and made it into 2 flats and had to borne huge amount for the same.

 

5

The entire expenditure for the reconstruction was borne by this defendant only.

14.  With reference to para 15 of the plaint this defendant is not aware whether plaintiff visited the office bearers of the society  on 9th  Oc Octo tobe ber, r, 20 2014 14 an and d 11th  Jan Januar uary y 201 2015 5 to asc ascert ertain ain factual position. With further reference to para 15 of the

plai pl aint nt th this is de defe fend ndan antt

st stat ates es th that at th they ey re rece ceiv ived ed th the e

intimation from the society to attend the meeting held on 19th April, 2015. Accordingly this defendant attended the said meeting on the above mentioned date. This defendant furthe fur therr sta states tes tha thatt on only ly on att atten endin ding g the me meeti eting ng thi this s defendant

came

Shas Sh ash hik ikan ant’ t’s s

to

nam ame e

know

from from

th the e

about sh shar are e

the

deletion

ce cert rtif ific icat ate. e.

of  Th This is

defendant was also surprised to know about the fact that apart from the deletion of Shivkumar’s name there were two additions of names in the share certificate i.e. one of  my son Mr. Niraj Moholay and another my brother’s wife Mrs. Jyotsna Sharsd Moholay. This defendant states that the ori origin ginal al Sh Share are Ce Certi rtific ficate ate con contai taine ned d on only ly 3 (th (three ree)) names

as

nominees

i.e.

1)

Sharad

J

Moholay,

2)

Shashikant J. Moholay and 3) Shivkumar J. Moholay.

15. With reference to para 16 of the plaint this defendant states that he has not received this letter dated 7 th April, 2017. This defend def endant ant fur further ther sta states tes tha thatt all allega egatio tion n mad made e in thi this s par para a against this defendant that he has played mischief to delete the name of Shashikant are absolutely false. This defendant

 

6

furt fu rthe herr st stat ates es th that at he wa was s no nott aw awar are e ab abou outt th the e de dele leti tion on of  Shashikant’s name from the Share Certificate of Society and af afte terr kn know owin ing g ab abou outt th the e de dele leti tion on ha has s ne neve verr ob obje ject cted ed to reinstate/add his name in the original share certificate. This defend def endant ant is not aw aware are

tha thatt Shash Shashika ikant nt doe does s not want to

participate in the issue and is also not aware about the fact that he had asked for partition of the suit property by meets and bounds. This defendant further states that if he would have ha ve re rece ceiv ived ed th this is le lett tter er he wo woul uld d ha have ve de defi fini nite tely ly ha have ve responded to the same knowing the gravity of the th e facts.

16. With reference to para 17 of the plaint this defendant states that he has not received the letter dated 7 th April, 2015. Hence the contents therein are totally denied. As the Defendant and his wife are working outside the house and most of the time are ar e no nott av avai aila labl ble e at ho home me ti till ll th the e late late ev even enin ing. g. As du due e to strained relationship with his son there is no one who can coll co llec ectt an any y le lett tter ers s on his his be beha half lf un unle less ss an and d un unti till th the e sa said id letters are dropped at home or in box.

17.  With referenc reference e to para18 of the plaint this defendant states tha hatt he is not party to this his letter dated 3rd  Jul July, y, 201 2015 5 addressed by the society to the Advocate of defendant No.1.  This defendant states that this letter speaks about the resolution passed on 19th April, 2015 in which this defendant was also present and this defendant never had any objection in reinstating the name of his brother Shashikant in the Share Cert Ce rtif ific icat ate e of th the e So Soci ciet ety y as a no nomi mine nee. e. He Henc nce e tend tender er no comments in view thereof.

 

7

18. Wit With h refere reference nce to para 19 of the plaint this defendant is not aware awa re of let letter ter dat dated ed 1-9 1-9-20 -2015 15 add addres ressed sed by Sha Shashi shikan kants’ ts’s s Advocate to Mr.Aditya Desai and Mr. Bhavesh Mehta.

19.  With reference to para 20 of the plaint this defendant states that he did not receive any such letter dated 1 st  September, 2015 201 5 fro from m Sha Shashi shikan kant’s t’s Adv Advoca ocate. te. But now now,, aft after er per perusi using ng this his

letter

this his

defendant

states

tha hatt

allegations

and

contentions conten tions made against this defe defendant ndant are abso absolutel lutely y false

and frivolous. Hence are denied in toto. This defendant never had the ori origin ginal al sha share re cer certif tifica icate te wit with h him him.. Thi This s def defend endant ant that at he ha has s pl play ayed ed an any y mi misc schi hief ef an and d fo forg rger ery y an and d denies  th cheating against Shashikant.

20. With reference to para 21 of the plaint this defendant states that the letter dated 14 th September, 2015 was addressed by  1st Defendants Advocate to Shashikant’s Advocate. Hence this defe de fend ndan antt is no nott aw awar are e of the sa said id lett letter er.. Th This is de defe fend ndan antt further states that Defendant No.1 has never given any Power of At Atto torn rney ey to De Defe fen nda dant nt No. o.2 2 and hen ence ce th the e que uest stio ion n misusing the same does not arise at all. As far as 1st floor of  the su suit it pr prem emis ises es is co conce ncern rned ed it wa was s gi give ven n on leav leave e an and d license

by

both

the

jointly

and

the

deposits

and/or

comp co mpen ensa sati tion on an and/ d/or or re rent nts s re rece ceiv ived ed from from the sa same me we were re deposited in the joint HUF account which are still lying in the same account till date and cannot be withdrawn by any one person.

 

8

21. With reference to para 22 of the plaint this defendant states that he has not seen a any ny Gift D Deed eed dated 5th December, 2015 given by his brother Mr. Shashikant in fabour of the plaintiff  and puts the plaintiff to strict proof thereof.

22. With reference to para 23 of the plaint this defendant states thatt thi tha this s de defe fend ndan antt ha has s no nott rece receiv ived ed his his lette letterr da date ted2 d24t 4th h December, 2015 intimating this defendant about execution of  the Gift Deed. This defendant further states that plaintiff has not annexed the Gift Deed to the plaint hence this defendant cannot reply much on this issue.

nce e to pa hatt 23. With referenc para ra 24  of the plaint it is true tha defendant No.1 had filed a suit before the Hon’ble City Civil Court of Bombay, (Dindoshi Branch) and also took out Notice of Motion for ad-interim reliefs.

24. With reference to para 25 of the plaint this defendant states that it is true that defendant No.1 had filed a suit for seeking a declaration that the Leave and License Agreement executed in fa favo vour ur of th the e il ille lega gall oc occu cupa pant nts s of tw two o flat flats s on 1 st  flo floor or is without the permission and/or consent of Defendant No.1 in writ wr itin ing g an and d fo forr ot othe herr re reli lief efs. s.

Th This is def defen enda dant nt stat states es th that at

Defendant No.1 was very much aware of the leave and license agreement of the 1st  floor and it was not done without the permission and/or consent of Defendant No.1 and others.

 

9

25. With further reference to para No.25 the facts are as under :-

a)

 There are 2 flats on the first floor. The entire first floor was got vacated by both the defendants herein and the tenant was given a large amount for the same.

b)  

As the out outgoi going ng tena tenant nt had mad made e man many y ad addit dition ions s and alte altera rati tion ons s in th the e fi firs rstt fl floo oorr pr prem emis ises es ac acco cord rdin ing g to his his conven con venien ience ce thi this s def defend endant ant ha had d to bo born rn aro around und Rup Rupees ees Nine Lacs to bring back to its original state of two separate flats.

c)  Thereafter Defendant No.1 intended to take possession of  one flat on the first floor and asked me to take another flat on the first floor. When I said this is not possible as it is the property of “HUF” then he decided to file the above suit against me by making false and frivolous allegations.

26. With reference to para 26 of the plaint this defendant states that contents therein are correct.

With th ref refer erenc ence e to par 27. Wi para a 28 (su (subm bmiss ission ions) s) of the plaint this defendant states that the contents therein are substantially  correct.

28. With reference to para 29 of the plaint this defendant denies its contents and puts the plaintiff to strict proof thereof.

 

10

29.  With reference to para 30 of the plaint this defendant denies its contents and puts the plaintiff to strict proof thereof.

30. With reference to para 31 of the plaint this defendant denies its contents and puts the plaintiff to strict proof thereof.

With th re refe fere renc nce e to para 32  of the plaint this defendant had 31. Wi already delt with these allegations in earlier para Nos. 28 and 29 of this written statement and again denies its contents and allegations made therein and put the plaintiff to strict proof  thereof.

32. With reference to para 33 of the plaint this defendant agrees that it is an undisputed position that Shashikant had 1/3 rd undivided share, right, title and interest in the property. With further reference to para 33 of the plaint this defendant states tha th at he ha has s no nott se see en Deed of Gi Gift ft al alle leg ged to ha have ve bee een n executed by his brother Shashikant in favour of the plaintiff  nor it has been annexed to the plaint. Hence this defendant cannot make any comments on the statements made therein and hence denied the same.

33. With reference to para 34 of the plaint this defendant denies that he had called to his brother Shashikant and offered him to buy his share and put the plaintiff to strict proof thereof.

 

11

34. With reference to paras 35 to 44  of the plaint this defendant states that when the title of the suit property is not clear till today, the Plaintiff is not entitled to any relief. This Defendant has strong objection to grant of any prayer or any interim or ad-interim ad-in terim reli reliefs efs c calle alled d in purvi purview ew of the a above bove facts facts..

This

defendant states that the plaintiff has not made out any case even the prima-faci for the reliefs claimed in the suit and the entire suit is false and frivolous and having no cause of action, the suit is liable to be dismissed with costs.

35.  The above submissions are made without prejudice to one another and the aforesaid affidavit is filed without prejudice to the foregoing submission.

36.  The Defendants crave leave to submit additional written statement in due course, if necessary.

37. In the premises aforesaid, Defendants respectfully submit and pray that Suit filed by the present Plaintiff to be dismissed with heavy costs.

38.  This defendant will rely upon the documents a list whereof is hereto annexed.

Advocate for Defendant No.2

 

Defendant No.2

 

12

 

 

VERIFICATION

I, Shivkumar Jankiprasad Moholay, Indian Inhabitant, the

defendant No.l2 abovenamed residing at “Parul”, Ground Floor, Plot No.12, Vishwabharti Co-operative Housing Society Ltd., Vithalbhai Patel Road, Juhu Cross Lane, Andheri (West), Mumbai – 400 058.

Solemnly declared at Mumbai  This _______ day of March, 2 2017. 017.

) )  

( Sushil T. Purohit ) Advocate for Defendant No.2

Before Me

 

13

 

IN THE BOMBAY CITYH CIBIL COURT  BORIVALI DIVISION SUIT NO.3223 OF 2016

Mrs. Usha Arun Trivedi  

…. Plaintiff  

Versus

Sharad J. Moholay & Anr.

…Defendants

LIST OF DOCUMENTS RELIED UPON BY THE DEFENDANT No.2 ABOVENAMED.