Bombay High Court
Kiran L. Kapadia vs Seth Devidas Lallubhai Public ... on 25 October, 2018
Author: S.C. Gupte
Bench: S.C. Gupte
sat 1/5 s 260-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 260 OF 2012
Kiran L. Kapadia ...Plaintiff
vs.
Seth Devidas Lallubhai Public
Charitable Trust & Ors. ...Defendants
Mr.Madhsoodanan Nair with Sharad Agre I/b. KPMC Legal for Plaintiff.
Mr.Sunil Gangan with Akshat Shah I/b. RMG Law Associates for Defendant
Nos.1 to 4.
CORAM : S.C. GUPTE, J.
DATE : 25 OCTOBER 2018
P.C. :
Heard learned Counsel for the parties.
2 The following issues are framed :
1) Whether the suit is barred by the law of limitation for the reason that the cause of action arose on 20.2.1976 and was not continuing in nature or for any other reason?
2) Whether the suit is liable to be dismissed as against Defendant No.1 for want of prosecution under Section 50 of the Bombay Public Trusts Act?
3) Whether the Plaintiff proves that he is entitled to redeem the suit property being land and structures standing bearing two Survey Numbers C.T.S. Nos.706 and 706/1 (Old C.S. No.706-A & ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:00:54 ::: sat 2/5 s 260-2012.doc 706-B) from Defendant Nos.1 to 4 by paying the mortgage debt as per the Deed of Mortgage and upon receiving the payment Defendant Nos.1 to 4 are liable to hand over the original title deeds to the Plaintiff?
4) If the Plaintiff is entitled to so redeem the suit mortgage, what is the amount that the Plaintiff is liable to pay towards the mortgage debt?
5) Whether the Plaintiff proves that the Deed of Conveyance dated 5.6.1984 between the Plaintiff and Rose Lewis Family Trust is sham, bogus, illegal or null and void?
6) Whether the Plaintiff proves that the document of transfer of mortgage dated 30.1.1986 between Navin Kapadia and Defendant No.5 is sham, bogus, illegal or null and void?
7) Whether the Plaintiff proves that the Consent Terms dated 11.10.1988 in Bombay High Court Suit No.681 of 1987 is sham, bogus, illegal or null and void?
8) Whether the Plaintiff proves that all other documents and Consent Decrees (i) dated 11.10.1988 in Bombay High Court Suit No.273 of 1982 (Ex-AA), (ii) dated 11.10.1988 in Bombay High Court Suit No.1197 of 1984 (Ex-BB), (iii) dated 11.10.1988 in Bombay High Court Suit No.1110 of 1987 (Ex-DD), (iv) dated 29.5.2008 in Suit No.1624 of 2008 (Ex-HH) and (v) dated ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:00:54 ::: sat 3/5 s 260-2012.doc 4.7.1986 in High Court Suit No.1597 of 1986 (Ex-S) are collusive and obtained fraudulently and are null and void and/or are liable to be set aside?
9) Whether the Plaintiff proves that the Sale Agreement dated 1.4.2008 between Defendant Nos.5 and 6 is bogus, illegal or null and void?
10) Whether Defendant Nos.1 to 4 prove that post mortgage the plaintiff lost possession of the suit property and due to default, lost the ownership to Defendant No.1 by way of foreclosure of mortgage as claimed?
11) Whether Defendant No.5 proves that the documents executed post February, 1976 without consent or knowledge of Defendant Nos.1 to 4 are valid, subsisting and binding?
12) Whether Defendant Nos.1 to 4 prove that Defendant No.5 is liable to handover to them the original title deeds of the mortgaged land of the Plaintiff which were dishonestly or fraudulently obtained by Defendant No.5 from the deceased trustee of Defendant No.1, Navin Kapadia, by misrepresentation or fraud?
13) Whether the Plaintiff and Defendant Nos.1 to 4 prove that they were not aware of High Court Suit No.1597 of 1986 and the consent terms and decree obtained therein?
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14) Whether Defendant No.5 proves that he became the owner of the suit property by virtue of Consent Decree dated 10 October 1988 as claimed in paragraph 4 of his written statement?
15) Whether Defendant No.5 proves that the Decree dated 4.7.1986 was obtained legally, validly and was acted upon by the parties thereto and the same is binding on the Plaintiff and Defendant Nos.1 to 4?
16) Whether the Plaintiff and/or Defendant Nos.1 to 4 prove that Defendant Nos.5 and 6 have played a fraud on the court and obtained collusive decrees illegally and thus committed perjury and also contempt of the court and are, therefore, liable to be prosecuted both for perjury or civil/criminal contempt as per the provisions of the Indian Penal Code or under the provisions of the Contempt of Courts Act?
17) Whether the Plaintiff and/or Defendant Nos.1 to 4 are entitled for compensatory costs and if so, for what amounts?
18) What order?
3 Parties to file their respective affidavits of documents and compilations and complete inspection of documents within six weeks from today.
::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:00:54 :::sat 5/5 s 260-2012.doc 4 Place the suit for directions after eight weeks. 5 In the second sentence of para 2 of the order dated 21
September 2018, the words "Defendant Nos.2 to 6" shall be substituted by the words "Defendant Nos.2 to 4".
6 The Plaintiff is permitted to amend the index and synopsis of the plaint. Amendment to be carried out within two weeks. Reverification is dispensed with.
(S.C. GUPTE, J.) ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:00:54 :::