Disposed

M/S Hotel Four Seasons LLP Thr. Its Partners, Mr. Mohan Kanhaiyalal Gaud and Ors. v. Sumeet Shriram Agrawal

Bombay HC2 Feb 2024CAW/302/2024

Case brief

AI extract

What is this about?

Applicant sought an order restraining petitioners from creating third party interest in suit properties pending Commercial Appeal after the writ petition was disposed of with remand to District Judge-2, Amravati. Holding such an application not maintainable in a disposed-of matter as the court is functus officio, the judge dismissed it but granted liberty to seek the same relief before District Ju

What did the court decide?

Civil application disposed of; applicant granted liberty to seek restraining relief before District Judge-2, Amravati on 3 February 2024; that court directed to consider it.

M/S Hotel Four Seasons LLP Thr. Its Partners, Mr. Mohan… — Property and Title | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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Civil Application (CAW) No. 302 of 2024

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Writ Petition (WP) No. 4869 of 2023

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M/s Hotel Four Seasons LLP through its Partners Mr. Mohan Kanhaiyalal Gaud and others

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Versus

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Mr. Summet Shriram Agrawal

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Office Notes, Office Memoranda of Coram, appearances, Court's Orders or directions and Registrar's order

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Court's or Judge's Order

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Shri K.P.Mahalle, Advocate for the applicant/ respondent.

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Ms. Gauri Venkatraman, Advocate for the nonapplicants/petitioners.

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CORAM : ANIL S. KILOR, J. DATED : 2^nd FEBRUARY, 2024.

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By way of present application, the applicant has made following prayers:

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“1. Direct the Petitioners to refrain themselves from creating third party interest in the suit properties which are subject matter of Commercial Appeal No. 02/2022 till its disposal.

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Grant ad-interim relief thereby directing the Petitioners to refrain themselves from creating third party interest in the suit properties which are subject matter of Commercial Appeal No. 02/2022 till its disposal.

SKNair

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Grant ad-interim relief in terms of Prayer Clause (2).

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Grant any other relief to meet the ends to justice.”

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In this case, the writ petition was disposed of vide judgment dated 30^th January, 2024 and thereby the matter was remanded to the learned District Judge2, Amravati to decide the same afresh after hearing both the parties. Both the parties are directed to appear before the District Judge-2, Amravati on 8^th February, 2024 and the District Judge-2, Amravati was directed to decide the appeal within two months from the date of appearance of the parties.

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During the pendency of this Writ Petition No. 4869 of 2023, there was no stay granted to the order passed by the learned District Judge-1, Amravati restraining the non-applicants in this application from creating third party interest to the extent of 20% share of the applicant. Even such order was there in force in earlier round of litigation from October, 2022.

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The application has been opposed on the ground that application is not maintainable, as it is not a review or speaking to minutes and therefore, if any such order is passed it would amount taking away rights of the non-applicants to oppose such prayer if any made before the District Judge-2 Amravati. It is pointed out that once the judgment is passed the Court is functus

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SKNair

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officio and cannot entertain any such application and hence, the application is not tenable.

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In the morning, when the matter was heard, this Court made a specific query to the learned counsel for the non-applicants ‘whether the non-applicants are intending to create a third party interest or alienate the property in dispute, before the date fixed by this Court to appear by the parties before the District Judge-2 on 8^th February, 2024’. The learned counsel for the nonapplicants on instructions submits that, she cannot make any such statement that the non-applicants will not create third party interest or alienate the property by 8^th February, 2024 i.e. fixed date before the learned District Judge-2, Amravati.

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On the other hand, learned counsel for the non-applicants asked for a time till 5^th February, 2024 to file reply to this application.

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It is a settled law that in a disposed of matter, such application is not maintainable as the Court became functus officio. However, considering the peculiar facts and circumstances of the present case, I am of the opinion while dismissing the application a liberty should be granted to the applicant to approach to the learned District Judge-2, Amravati and file an application for such relief tomorrow i.e 3^rd February,

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SKNair

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2024 at 11 am to meet the ends of justice. On filing of such application, District Judge-2, Amravati is directed to consider the same and pass an appropriate order in accordance with law.

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The civil application is disposed of accordingly.

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[ANIL S. KILOR, J.]

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SKNair

M/S Hotel Four Seasons LLP Thr. Its Partners, Mr. Mohan Kanhaiyalal Gaud and Ors. v. Sumeet Shriram Agrawal

Case brief

What is this about?

What did the court decide?

M/S Hotel Four Seasons LLP Thr. Its Partners, Mr. Mohan Kanhaiyalal Gaud and Ors. v. Sumeet Shriram Agrawal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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