Bombay High Court
Arzan Khambatta vs Martin Borchert And Anr on 21 December, 2018
Author: Riyaz I. Chagla
Bench: B. R. Gavai, Riyaz I. Chagla
(920)-APL-568-18.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.568 OF 2018
IN
MISC. TESTAMENTARY APPLICATION (L) NO.7 OF 2018
Arzan Khambatta ..Appellant
Versus
Martin Borchert and another ..Respondents
AND
NOTICE OF MOTION (L) NO.1456 OF 2018
IN
APPEAL (L) NO.568 OF 2018
IN
MISC. TESTAMENTARY APPLICATION (L) NO.7 OF 2018
Arzan Khambatta ..Applicant
IN THE MATTER BETWEEN
Arzan Khambatta ..Appellant
Versus
Martin Borchert and another ..Respondents
Mr. Shyam Kapadia a/w Ms. Shamima Taly, Mr. Aziz Shaikh,
Mr. Vithobha Masurkar I/by M/s. S. Mamohedbhai and Co.,
Advocate for the Applicant/Appellant.
Mr. Haresh Jagtiani, Senior Advocate a/w Ms. Vandana Mehta,
Mr. Siddhesh Bhole, Mr. Deepam Rangwani I/by Mr. Siddhesh
Bhole, Advocate for Respondent No.1.
CORAM : B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.
DATE : 21st DECEMBER, 2018 P.C. 1] We are sorry to observe the manner in which the order BGP. 1 of 5 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:54:42 ::: (920)-APL-568-18.doc.
of the Appellate Court i.e. Division Bench of this Court has been considered by the learned Single Judge of this Court. 2] The learned Single Judge of this Court in Misc. Petition No.63 of 2010 filed under the provisions of Section 301 of the Indian Succession Act, 1925, has disposed of the said Misc. Petition with certain direction. Being aggrieved thereby, the present Appellant approached the Appellate Court by filing Appeal (L) No.464 of 2018. When the matter was mentioned before the Division Bench on 11th October 2018, the Division Bench found that there was no urgency, inasmuch as, there was no direction issued under the said order enjoining the Appellant to hand over possession of any property. However, counsel for the Appellant brought to the notice of the Division Bench that a praecipe is moved by the contesting Respondents before the learned Single Judge on Monday i.e. 15th October 2018 for seeking clarification. 3] The Division Bench in its order (A. S. Oka & M. S. Sonak, JJ) observed thus in paragraph 3 :-
"3 Suffice it to say that as of today, there is no direction issued under the order dated 6th April 2018 to BGP. 2 of 5 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:54:42 ::: (920)-APL-568-18.doc.
the appellant to hand over possession of any property or part with any property. Even assuming that any such direction will be issued on 15th October 2018, we are sure that the learned Single Judge will consider the prayer of the appellant for grant of a reasonable time to move the Appellate Court. Hence, as of today, there is no urgency. Place this appeal on the date fixed as per C.M.I.S. after all office objections are removed." 4] It could thus be seen the learned Judges of the Division Bench have clearly observed that as of said date, there was no direction issued under the order dated 6th April 2018 to the Appellant to hand over possession of any property or part with any property. The learned Judges of the Division Bench further observed that even assuming any such direction will be issued by the learned Single Judge on 15th October 2018, they were sure that learned Single Judge would consider prayer of the Appellant for grant of a reasonable time to move the Appellate Court. 5] It appears that initially the contesting Respondents had filed an application for speaking to the minutes of the order before the same learned Single Judge. However, learned Single Judge found that the prayer as made by the contesting Respondents could not be granted in a motion for speaking to the minutes of the order and as such, he directed the contesting Respondents to file Misc.
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(920)-APL-568-18.doc.
Application.
6] In the said Misc. Application, learned Single Judge
passed an order on 14th December 2018 by clarifying that the Petitioner therein (contesting Respondent herein) was at liberty to apply to the authorities to have property transferred in his name. After the order was passed by the learned Single Judge, the counsel appearing on behalf of the present Appellant requested the learned Single Judge for stay of the order. However, learned Single Judge observed that there was nothing to stay and that he had not issued any directions to the first Respondent nor the Petitioner. The prayer was therefore rejected.
7] When the Appellate Court had specifically observed that if any order was passed by the learned Single Judge, he would consider the prayer of Appellant for grant of a reasonable time to move Appellate Court, in our considered view, the learned Single Judge was bound to give due respect to the said observation. Undisputedly, by the order dated 6th April 2018, there was no direction with regard to transfer of the property, which direction came to be issued for the first time vide order dated 14 th December BGP. 4 of 5 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:54:42 ::: (920)-APL-568-18.doc.
2018. In that view of the matter, in deference to the observations made by the Division Bench in its order dated 11 th October 2018, the learned Single Judge ought to have granted at least mere short period, so as to enable Appellant to approach the Appellate Court. 8] In that view of the matter, we are inclined to grant stay to the impugned order only on the ground of judicial propriety. 9] The order dated 14th December 2018 is therefore stayed until further orders. The present Appeal is directed to be heard with Appeal (L) No.464 of 2018.
10] We make it clear that we are not granting stay by considering merits of the matter, but only since the observations made by the learned Judges of the Division Bench were not considered by the learned Single Judge.
11] Stand over to 7th January 2019, to be heard with Appeal (L) No.464 of 2018.
[RIYAZ I. CHAGLA, J.] [B. R. GAVAI, J.]
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