Bombay High Court
Junot C. Pereira And Ors vs Om Prakash Navani And Ors on 5 July, 2019
Author: R. I. Chagla
Bench: R. I. Chagla
63-CHS-986-2009.DOC
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 986 OF 2009
IN
SUIT NO. 1436 OF 2005
Junot Chargas Pereira ... Applicants /
Plaintiffs
V/s.
Omprakash Navani and Ors. ... Defendants
And
Ms. Olinda Viegas and Anr. ... Respondents
Mr. Chirag Mody, with Ms. Saloni Shah I/b DSK Legal for the
Plaintiffs.
Ms. Armin Wandrewalla I/b Law Charter for Defendant Nos. 1 and
2.
CORAM: R. I. CHAGLA, J.
DATE: 5TH JULY, 2019. PC:-
1. This Chamber Summons has been taken out after considerable delay of 501 days for which condonation has been sought. The Chamber Summons seeks amendment of the cause title in the Suit by deleting the name of Plaintiff No.3 and adding the names of Ms. Olinda Viegas and Ms. Sharon Indira Meers as Plaintiffs in the cause title of the Suit. The averment in the Affidavit in Support of the Chamber Summons is that the Suit has been preferred by the Joyden Trust and that the right to sue had survived with the deponent of the Affidavit viz. Junot C. Pereira, as 1/6 ::: Uploaded on - 09/07/2019 ::: Downloaded on - 13/07/2019 06:09:29 ::: 63-CHS-986-2009.DOC the surviving trustee of the said Joyeden Trust. It is stated that by Supplemental Deed made on 10th August, 2008, the sole trustee Junot C. Pereira, as the sole surviving trustee to the Indenture to the Trust made on 29th October, 1954 and exercising power under Clauses 15 and 16 of the Indenture appointed Ms. Olinda Viegas and Ms. Sharon Indira Meers as the new trustees. There is a letter dated 15th July, 2008 addressed by Mark Peter Forbes Irving and Tani Justine Maria Claydon who claim that they authorised their cousin Sharon Indira Meers, the daughter of Jacqueline Angela Meers, another original Trust beneficiary, to make decisions regarding their beneficial interest in the Joyeden Trust. It is stated in the supplemental deed that similar letters of support have been obtained from Jacqueline Angela Meers, Kim Charles Naylor, Emma Anjali Locke and Sharon Indira Meers authorising the new trustees to make decisions with regard to their beneficial interest in the Joyden Trust.
2. It is stated by the learned Counsel for the Applicant that upon the new trustees having been appointed, it would be necessary to amend the cause title of the Suit in order to bring new trustees on record in place of Ena Theresa Naylor who had expired on 2nd November, 2007.
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63-CHS-986-2009.DOC
3. The learned Counsel for the Defendant Nos. 1 and 2 has vehemently opposed granting any relief in the Chamber Summons. She has submitted that the Ena Theresa Naylor, the original Plaintiff No.3, had expired despite which her heirs were not sought to be brought on record and instead the purported new trustees under a supplemental deed had been sought to be joined, whose appointment itself is in doubt. She refers to the said letter of support dated 15th July, 2008 and states that the Joyeden property held by the Joyeden Trust deed which is the suit property is not mentioned and the Manori property held by the Joyeden Trust is mentioned. She submits that the letter of support / authorisation for the new trustees to represent the beneficial interest of the addressees of the letter in respect of the Manori property cannot be extended to the suit Property. She has submitted that there is a considerable delay in filing of the Chamber Summons which had been filed over two years after the demise of Plaintiff No.3 and was served upon these Defendants after lapse of over two years i.e. on11th April, 2012. She has submitted that there is thus a gross delay in filing and then serving of the Chamber Summons upon these Defendants. She further submits that there is no explanation given in Affidavit in Support of the Chamber Summons to justify such delay other than stating 3/6 ::: Uploaded on - 09/07/2019 ::: Downloaded on - 13/07/2019 06:09:29 ::: 63-CHS-986-2009.DOC that filing of the present Chamber Summons is due to circumstances beyond the control of the Applicants and the delay is through inadvertence and due to oversight.
4. Having considered submissions, I am of the view that the amendment sought is in the cause title of the Suit by the deletion of Plaintiff No.3 which is necessary as the Plaintiff No.3 had expired. Further, the new trustees which have been sought to be joined in place of Plaintiff No.3 are being joined pursuant to their appointment as new trustees under supplemental deed made on 10th August, 2008 to the indenture of the trust. The supplemental deed sets out clauses 15 and 16 of the indenture which provide that the sole surviving trustee has the power to appoint new trustees which is precisely has been done here by original Plaintiff No.1. I do not accept the submission on behalf of the learned Counsel for the Defendant Nos.1 and 2 that merely because the letter of support / authorisation of the new trustees to represent the beneficial interest of the addressees in the trust referred to the Manori property and not the Suit property, the same is to be disregarded. It is clearly mentioned in the said letter dated 15th July, 2008 that the new trustee is authorised to make decisions regarding beneficial interest of the addressees of the letter in the Joyeden Trust. Thus the Joyeden Trust who have filed the Suit is 4/6 ::: Uploaded on - 09/07/2019 ::: Downloaded on - 13/07/2019 06:09:29 ::: 63-CHS-986-2009.DOC required to be represented by the new trustees who have been appointed under the supplemental deed. Accordingly, it would be necessary to carry out this amendment in the cause title of the Suit by including the names of the new trustees in accordance with schedule annexed and marked as Exhibit 1 to the Chamber Summons. It will always be open to the Defendant Nos.1 and 2 to raise these contention in their Written Statement which is yet to be filed.
5. However, I take a note of the fact that the Chamber Summons suffers from gross delay, having been filed nearly two years after the death of Plaintiff No.3 as well as having been served upon Defendant Nos. 1 and 2 over two years thereafter i.e. 11th April, 2012. Therefore, the grant of prayers in the Chamber Summons shall be conditional upon the Plaintiff paying costs in the sum of Rs.50,000/- which shall be payable in favour of the "Maharashtra Legal Aid Service Authority".
6. The Chamber Summons is made absolute in terms of prayer clauses (a) and (b) by condoning the delay of 501 days and permitting the Plaintiff to amend the Suit in terms of the schedule annexed and marked exhibit 1 thereto which shall be done within a period of three weeks from the date of uploading of this order 5/6 ::: Uploaded on - 09/07/2019 ::: Downloaded on - 13/07/2019 06:09:29 ::: 63-CHS-986-2009.DOC subject to payment of costs of Rs.50,000/- in favour of "Maharashtra Legal Aid Service Authority".
7. Chamber Summons is accordingly disposed of in the above terms.
( R I. CHAGLA, J. ) 6/6 ::: Uploaded on - 09/07/2019 ::: Downloaded on - 13/07/2019 06:09:29 :::