Bombay High Court
Vimal Builders vs Nand Kumar Anant Vaity And Ors on 8 June, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2023:BHC-OS:4675
38 nms 1716-10.ott
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1716 OF 2010
IN
NOTICE OF MOTION NO. 3679 OF 2007
IN
SUIT NO. 2715 OF 2007
Vimal Builders .. Plaintiff
Versus
Nand Kumar Anant Vaity & Ors. .. Defendants
Mr. Ponvel Nadarajan, Authorised Representative of Defendant
No.41 is present.
Mr. Karl Tamboly a/w Hrushi Narvekar, Shaheda Madrasawala,
Rajni Mehta & Kishan Kode i/b. Vashi & Vashi for the Original
Plaintiff.
CORAM: B. P. COLABAWALLA, J
DATE: JUNE 08, 2023
P. C.
1.The above Notice of Motion is filed by the Defendant No.41- Society inter-alia seeking the following reliefs:
"a) that the Order dated 09-06-2008 passed in Notice of Motion No. 3679 of 2007 in the present suit, be set aside under Order 39 of 4 of the Code of Civil Procedure 1908.Page 1 of 7
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b) that a preliminary issue under section 9-A (as applicable to State of Maharashtra) of the Code of Civil Procedure Code, 1908 be framed and decided relating to the jurisdiction of this Hon'ble Court and maintainability of the suit.
c) that the Plaint as filed be rejected under the provisions of Order 7, Rule 11(d) of the Code of Civil Procedure, 1908."
2. As far as prayer clause (b) is concerned, Mr. Nadarajan appearing on behalf of Defendant No.41, correctly submitted that the issue of jurisdiction will have to be framed along with all other issues in the Suit and then the Court will decide whether it should be tried first or it should be tried with all other issues.
3. As far as prayer clause (c) is concerned, I am informed that this issue is already decided against Defendant No.41 by order dated 15 th October 2013 passed in Appeal No. 443 of 2013 and hence would not survive for my consideration.
4. What is now left to be considered is prayer clause (a). Prayer clause (a) seeks to set aside the order dated 9 th June 2008 passed in Notice of Motion No. 3679 of 2007. The ground on which the Page 2 of 7 JUNE 08, 2023 Laxmi ::: Uploaded on - 12/06/2023 ::: Downloaded on - 12/06/2023 22:09:57 ::: 38 nms 1716-10.ott aforesaid order is sought to be set aside is that the said order has been passed behind the back of Defendant No.41 who was not yet a party to the suit and the fact that the said order records, or rather gives the impression, that the Plaintiff is in possession of the suit properties (described in Exhibit-A1 and A2 of the Plaint). Mr. Nadarajan has brought to my attention that in a subsequent Notice of Motion filed by the Plaintiff, being Notice of Motion No. 3514 of 2008, an order was passed by this Court on 3rd March 2009. In that order, the learned Judge has categorically taken note of the letter of possession and power of attorney executed on 24th October 1981 in favour of Defendant No.41 indicating that it is in possession of the suit property (described in Exhibit-A1 to the Plaint) and the same is duly protected by the Co- operative Court by appointment of a Receiver. Further the Receiver has thereafter handed over possession to Defendant No.41. Taking all this into consideration, this Court dismissed Notice of Motion No. 3514 of 2008.
5. This order was thereafter subjected to an appeal being Appeal No. 161 of 2009. Mr. Nadarajan has brought to my attention the order dated 1st December 2011 passed by the Appeal Court and Page 3 of 7 JUNE 08, 2023 Laxmi ::: Uploaded on - 12/06/2023 ::: Downloaded on - 12/06/2023 22:09:57 ::: 38 nms 1716-10.ott submitted that this order also categorically records that it is the Defendant No.41 - Society who is in possession of the suit property (described at Exhibit-A1 to the Plaint). Mr. Nadarajan, and in my view, correctly submitted that once this is the position, then the observations made regarding possession of the suit property (described at Exhibit-A1 to the Plaint) in the order dated 9 th June 2008 cannot be sustained or in any event cannot bind Defendant No.41. He correctly submitted that this is more so when one takes into consideration that the said order was passed when Defendant No.41 was not even a party to the suit and the same is duly reflected in the very same order. He, therefore, submitted that the order dated 9th June 2008 ought to be set aside.
6. On the other hand, Mr. Tamboly, the learned Counsel appearing for the Plaintiff, submitted that when the above Notice of Motion had come up for ad-interim reliefs, this Court had passed an order on 12th July 2010. He submitted that at the ad-interim stage, this Court made it clear that the order dated 9 th June 2008 will have no effect in so far as the right, title and/or interest of Defendant No.41 is concerned. He submitted that the Court further clarified that if in any proceedings Defendant No.41 asserts its own independent rights, then Page 4 of 7 JUNE 08, 2023 Laxmi ::: Uploaded on - 12/06/2023 ::: Downloaded on - 12/06/2023 22:09:57 ::: 38 nms 1716-10.ott the order dated 9th June 2008 will not in any way affect the rights of Defendant No.41 to claim such reliefs as it may be entitled to in accordance with law. Mr. Tamboly submitted that once this clarification is in place, the apprehension of the Defendant No. 41 - Society regarding the observations of the Plaintiff's possession of the suit property (described at Exhibit-A1 to the Plaint) in the order dated 9 th June 2008 do not really survive. He, therefore, submitted that the above Notice of Motion can be made absolute in terms of the clarification given in the order dated 12th July 2010. This would adequately safeguard the rights of the Defendant No.41 - Society without setting aside the order dated 9th June 2008, was the submission.
7. I have heard Mr. Tamboly, the learned Counsel for the Plaintiff, and Mr. Nadarajan, the Authorized Representative of Defendant No.41 at some length. I have also perused the papers and proceedings in the above suit and the above Notice of Motion. It is not in dispute that the order dated 9 th June 2008 was passed at a time when Defendant No.41 was admittedly not a party to the suit. It is for this very reason that in paragraph 5 of the said order, a statement was recorded on behalf of Defendant No.40 that he shall not alienate, encumber, Page 5 of 7 JUNE 08, 2023 Laxmi ::: Uploaded on - 12/06/2023 ::: Downloaded on - 12/06/2023 22:09:57 ::: 38 nms 1716-10.ott transfer, create any third-party rights or disturb the Plaintiff's possession in any part of the suit properties (described in Exhibit-A1 and A2 to the Plaint). As far as this statement is concerned, (in relation not to create any third-party rights etc.), I do not think Defendant No.41 can have any real objection. However, as far as disturbance of the Plaintiff's possession is concerned, I find that the grievance made by the Defendant No.41 - Society is well founded. As narrated earlier, prima facie, Defendant No.41's possession of the property (described in Exhibit-A1 to the Plaint) has been recognized by order dated 3 rd March 2009 (learned Single Judge) and 1 st December 2011 (the Division Bench). Once this is the case, the concession made by Defendant No.40 in paragraph 5 of the order dated 9 th June 2008 regarding possession of the suit properties (described in Exhibit-A1 to the Plaint) can certainly not bind Defendant No.41. This being the case, it is made clear that order dated 9th June 2008 shall not in any way affect any right, title and/or interest of Defendant No.41. It is further made clear that the concession made therein by Defendant No.40 regarding the Plaintiff's possession shall also not be binding on Defendant No.41 and shall be ignored by any authority if the said order is sought to be relied upon by the Plaintiff to prove its possession. Further, if in any proceedings, Page 6 of 7 JUNE 08, 2023 Laxmi ::: Uploaded on - 12/06/2023 ::: Downloaded on - 12/06/2023 22:09:57 ::: 38 nms 1716-10.ott Defendant No.41 asserts their own independent rights, then the order dated 9th June 2008, will not in any way, affect the rights of Defendant No.41 to claim such reliefs as it may be entitled to in accordance with law. Once this is the clarification given, I am of the opinion that the rights of Defendant No. 41 are adequately protected and there is no necessity to set aside the order dated 9 th June 2008 in its entirety, and which really speaking, is binding on Defendant No.40 and not the Defendant No.41 - Society.
8. The above Notice of Motion is accordingly disposed of in the aforesaid terms. However, there shall be no order as to costs.
9. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[ B. P. COLABAWALLA, J ].
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