Bombay High Court
1. Bakul Maganlal Vyas & 2 Ors vs 1. Shri Babubhai (Alias Harsukhlal) ... on 5 December, 2018
Author: G.S. Patel
Bench: G.S. Patel
19-S1821-04.DOC
This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1821 OF 2004
WITH
NOTICE OF MOTION NO. 1713 OF 2018
Bakul Maganlal Vyas & Ors ...Plaintiffs
Versus
Babubhai alias Harsukhlal Govindji Trivedi ...Defendants
(deleted)
Mr Sanjay Jain, with Hasmit Trivedi & Kanizz Munjjee, i/b LJ Law,
for the Plaintiffs.
Mr Karl Tamboly, with Prerna Lalchandani & Jaswandi Khan, for
Defendant No. 3, Mahesh Trivedi.
CORAM: G.S. PATEL, J
DATED: 5th December 2018
PC:-
1.The suit is for framing issues. Defendant No. 3, the sole surviving Defendant entered his Written Statement on 16th November 2005. It appears that, entirely contrary to the provisions of Rule 95 of the Bombay High Court (Original Side) Rules, the 3rd Defendant has very recently purported to lodge a Counter-Counter- Claim. In some fashion that I am wholly unable to comprehend, the 3rd Defendant has, without prior leave of the Court, got a lodging number for the Counter-Claim.
Page 1 of 65th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 ::: 19-S1821-04.DOC This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018
2. Rule 95 is in pari material with Order VIII Rule 6-A of the Code of Civil Procedure, 1908 ("CPC"). Both say that a Counter- Claim proceeds like a cross-suit. This means that, exactly as in the case of a plaint, every Counter-Claim is also subject to issues of statutory limitation. But in addition, Counter-Claims are subject to a further stipulation not applicable to a suit. Both Rule 95 and Order VIII Rule 6-A specify an outer limit beyond which no Counter- Claim can be filed. In other words, it is not open to a defendant to file a Counter-Claim at any time that defendant chooses. It must be filed along with the defence or before the time limited for filing the defence has expired. In no view of the matter could the 3rd Defendant have lodged any Counter-Claim in 2018.
3. The Registry is not to accept Counter-Claims in this manner contrary to the express wording of Rule 95 of the Bombay High Court (Original Side) Rules without an order of the Court. It is not even to accept a Counter-Claim for presentation or lodging beyond the time prescribed in Rule 95.
4. The existing Counter-Claim (L) No. 186 of 2018 will be de- registered and returned to the Advocate for Defendant No. 3 forthwith.
5. Mr Tamboly seeks leave to file an appropriate application for liberty to file a Counter-Claim. I cannot grant any such leave, lest it be construed as some sort of permission or a finding that a Counter- Claim can be filed well after the time period set out in Rule 95. I am therefore neither granting or refusing leave.
Page 2 of 65th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 ::: 19-S1821-04.DOC This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018
6. There is also a pending Notice of Motion by the 3rd Defendant, Notice of Motion No. 1713 of 2018. The Additional Affidavit in Support of that Notice of Motion is to be filed in the Registry on or before 7th December 2018. Affidavit in Reply by the Plaintiff is to be filed and served on or before 1st February 2019. No Rejoinder is to be filed without leave of the Court.
7. List Notice of Motion for hearing and final disposal on 6th February 2019.
8. The Suit is taken up for framing issues. Issues are framed and these are appended to this order.
9. The Plaintiffs shall, on or before 18th January 2019 file (i) the Evidence Affidavit of the Plaintiff; (ii) an Affidavit of Documents; and (iii) a Compilation of Documents duly indexed and paginated. Copies of each of these will be served on the Advocates for the Defendants on or before that date.
10. Discovery and inspection are to be completed and statements of admission and denial are to be exchanged on or before 1st February 2019.
11. There will be no extension of time. In default of compliance, the suit will stand dismissed without further reference to the Court.
12. On the Plaintiffs complying with these directions, the matter will be taken up for marking of the Plaintiffs' documents and further Page 3 of 6 5th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 ::: 19-S1821-04.DOC This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018 directions on 8th February 2019 irrespective of the caption under which the matter appears.
13. The Plaintiffs are not to tender original documents and are required to file and serve a compilation of authenticated copies. The Plaintiffs agree and undertake to preserve the originals and produce it in Court as and when required until final disposal of the Suit.
14. It is clarified that all subsequent events, i.e., those after the filing of the suit may be referred to in the Affidavit in lieu of Examination-in-Chief of either side.
(G. S. PATEL, J.) Page 4 of 6 5th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 ::: 19-S1821-04.DOC This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018 ISSUES FRAMED ON 5TH DECEMBER 2018 SUIT NO. 1821 OF 2004
1. Whether the Plaintiffs prove that the Agreement for Sale dated 28th May 2001 and Power of Attorney dated 28th May 2001 in respect of the suit property, is valid, binding and subsisting upon the Defendants?
2. Whether the Defendants prove that the Agreement for Sale dated 28th May 2001 and Power of Attorney dated 28th May 2001 are validly terminated by the deceased, Mrs Ramalaxmi Ramshankar Trivedi?
3. Whether the Plaintiffs prove that they are entitled to specific performance of the Agreement for Sale dated 28th May 2001 in respect of the suit property, executed between Plaintiffs and (deceased) Mrs Ramalaxmi Ravishankar Trivedi?
4. If issues Nos. 1 and 2 are answered in the negative then whether the Plaintiffs prove that they are entitled to claim refund of Rs.
4,62,000/- in lieu of specific performance with further interest on the sum of Rs. 3,00,000/- at the rate of 18% per annum from the date of the filing of the suit till payment?
5. If issues Nos. 1 and 2 are answered in the negative then whether the Plaintiffs prove that they are entitled to claim sum of Rs.
1,00,00,000/- by way of damages in lieu of specific performance of the suit contract?
6. Whether the Plaintiffs prove that the confirmation receipt of sum of Rs. 3,00,000/-
Page 5 of 65th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 ::: 19-S1821-04.DOC This Order is modified/corrected by Speaking to Minutes Order dated 10/12/2018 dated 28th March 2001 being the part payment in respect of suit property executed by the deceased, R. Trivedi and Defendant No. 4 in favour of the Plaintiffs is valid, binding and subsisting upon the Defendants?
7. What order? What costs?
(G. S. PATEL, J.) Page 6 of 6 5th December 2018 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 29/12/2018 07:14:13 :::