Hemant Jayant Shah Vs Hdfc Bank Limited and 3 Ors.

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903-NMT51-15.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 51 OF 2015

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IN

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TESTAMENTARY PETITION NO. 1133 OF 2014

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Hemant Jayant Shah…Petitioner
Versus
HDFC Bank Limited & 3 Ors.…Respondents

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Dr. B. Saraf, with Mr. Rohan Sawant, i/b Mr. Yogesh Adhia, for the
Petitioner/Applicant.

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Mr. Rohaan Cama, with Mr. Akshay Doctor, i/b Desai & Diwanji, for
Respondents Nos. 2 and 3.
Ms. Suvarna Joshi, i/b Mr. Ashutosh Marathe, for Respondent No. 1.

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CORAM: G.S. PATEL, J DATED: 13th August 2015

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PC:-

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1.Two Affidavits affirmed on 10th August 2015 are tendered.
One is by Mr. Pravin Mashruwala, Respondent No. 2 and the
second is by Ms. Sunita Mohamed, Respondent No. 3. Both
Affidavits are taken on file.

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2.In paragraph 5 of his Affidavit, Mr. Pravin Mashruwala
confirms that the amounts that were in fixed deposit with HDFC

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Bank in the joint names of the deceased (the late Shravan Nilkanth
Mashruwala) and Mr. Pravin Mashruwala’s son, Mr. Ashutosh
Mashruwala, and the operating instructions in respect of which
account were ‘either one or survivor’, have been transferred on
maturity to Mr. Ashutosh Mashruwala’s account. The amount
transferred is Rs. 15,00,851/-. Mr. Pravin Mashruwala confirms
that he has no objection to the transfer and that he will not hold the
Petitioner, who claims to be the executor of the Will under
challenge, liable or responsible for this transfer of funds to Mr.
Ashutosh Mashruwala. A similar statement is made by Ms. Sunita
Mohamed, Respondent No. 3. Mr. Ashutosh Mashruwala himself is
personally present in Court and confirms and acknowledges the fact
of this transfer into his account.

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3.The Will makes a bequest inter alia in respect of the
deceased’s library. This is said to comprise about 300 books. The
bequest is in favour of one Mr. Shailesh Parekh from Ahmedabad.
Both sides agree that without prejudice to their respective rights
and contentions and without the Defendants in any way accepting
the Will, the books may be given to Mr. Shailesh Parekh. He will
arrange for their collection from the deceased’s flat, i.e. Flat No.
5C/503, 5th Floor Alica Nagar Cooperative Housing Society
Limited, Akurli Road, Kandivali (East), , Mumbai - 400 101.

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4.Both sides also accept that there is a nomination by the
deceased in favour of Mr. Ashutosh Mashruwala in respect of the
Alica flat.

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903-NMT51-15.DOC

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5.Both sides agree that the flat should be given on leave and
license for the benefit of the estate. It is also agreed that Mr.
Ashutosh Mashruwala will be at liberty to identify and bring
forward a licensee to whom the flat can be given. However, the
execution of the license agreement will be made by the Court
Receiver who is appointed for the limited purpose of execution of
that document. By way of abandon caution, it is clarified that the
Receiver is not appointed of the flat itself.

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6.From the license fee received, the Receiver will first disburse
the society dues and outgoings in respect of the flat in terms of the
license agreement, including arrears, if any. The Court Receiver
will make the necessary disbursements within ten days of his being
informed of the amounts due by either side. The Plaintiffs will be at
liberty to inform the Court Receiver of the amounts due as arrears.
Thereafter, further amounts as necessary will be intimated to the
Court Receiver by Mr. Ashutosh Mashruwala or his Advocates.

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7.The balance will be retained by the Court Receiver. The
surplus, if any, will be invested by the Court Receiver in accordance
with the usual practice of that office. Statements of account will be
rendered quarterly by the Court Receiver to the Advocates on both
sides. Further, should there be any issue in regard to the
maintenance or upkeep of the flat or carrying out any essential
repairs or renovations and which are required to be paid out of the
funds of the Court Receiver, the Court Receiver will be at liberty to
seek appropriate orders from the Court after prior intimation to the
Advocates for both sides.

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903-NMT51-15.DOC

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8.It is clarified that for convenience neither the society nor the
licensee will be required to communicate with the Court Receiver
directly. They may address all communications to Mr. Ashutosh
Mashruwala who will forward them to the Court Receiver for
necessary action with a copy to the Advocates for the Plaintiffs.
This is necessary because Mr. Ashutosh Mashruwala had earlier
entered a caveat which came to be discharged.

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9.By reason of this order, the Plaintiff shall not be deemed to
have accepted that Mr. Ashuthosh Mashruwala has any right or
entitlement contrary to the terms of the Will that the Plaintiff seeks
to propound in the Suit.

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10.The Notice of Motion is disposed of in these terms with no
order as to costs.

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11. All concerned to act on an authenticated copy of this order.

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(G. S. PATEL, J.)

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Hemant Jayant Shah v. Hdfc Bank Limited and 3 Ors.

Case brief

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Hemant Jayant Shah v. Hdfc Bank Limited and 3 Ors.

Case brief

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What did the court decide?

What the court decided

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