Bombay High Court
Mahesh Popatlal Vora And Prema Vora vs Bhagwanaram Khiya Ram Bishnoi And 2 Ors on 13 October, 2021
Author: G.S. Patel
Bench: G.S. Patel
4-IAL-18777-2021 IN S-178-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 18777 OF 2021
IN
SUIT NO. 178 OF 2021
Mahesh Popatlal Vora & Prem Vora ...Plaintiffs
Versus
Bhagwanaram Khiya Ram Bishnoi & Ors ...Defendants
WITH
INTERIM APPLICATION (L) NO. 23434 OF 2021
IN
INTERIM APPLICATION (L) NO. 18777 OF 2021
IN
SUIT NO. 178 OF 2021
Mr Sharan Jagtiani, Senior Advocate, with Satchit Bhogle, N
Aksari and A Khatri, i/b Lex Ridge Partners, for the Plaintiff.
Mr Bhagwanaram Khiya Ram Bishnoi, Suwadevi B Bishnoi and
Prakash Bishnoi, Defendants present in person.
CORAM: G.S. PATEL, J
ARUN
RAMCHNDRA DATED: 13th October 2021
SANKPAL PC:-
Digitally signed by
ARUN
RAMCHNDRA
SANKPAL
Date: 2021.10.14
09:48:53 +0530
1.Leave to amend to include a prayer for a deposit in both the Plaint and the IA. Amendment to be carried out in the course of the Page 1 of 8 13th October 2021 4-IAL-18777-2021 IN S-178-2021.DOC day today or by the end of the day tomorrow. A copy will be served on the Defendants themselves.
2. The three Defendants are present in Court pursuant to the order that I passed yesterday. For completeness, I reproduce that order now.
"1. I heard Mr Jagtiani and Dr Saraf for the Plaintiffs and Defendants briefly yesterday. I could not pass an order although I indicated to both sides the frame of the order that I had in mind.
2. Dr Saraf took time to take instructions on whether reasons are required or whether an operative order could be passed without reasons. His instructions then were that reasons were in fact sought by his clients, the Defendants. There was not enough time because of other fixed matters to pass the order yesterday so I stood the matter over to this morning.
3. Today I have commenced the Court proceedings at 9.30 am. The matter is listed at serial No. 9 for orders. As it was called out, Dr Saraf first said that he has few submissions to make. I was willing to consider those. In the meantime, the Court Associate pointed out that there is a communication received by the Registry addressed to the Hon'ble the Chief Justice (presently not in Mumbai) signed by all three Defendants which says inter alia that I am "in great hurry to decide and pass drastic orders against the Defendants without giving the Defendants their fundamental rights to bring the right evidence and facts of the matter which will show fabrication and forgery done by the Plaintiffs".
4. The written request is made to the Hon'ble The Chief Justice. This document is retained on record and Page 2 of 8 13th October 2021 4-IAL-18777-2021 IN S-178-2021.DOC marked "X" for identification with today's date. I have taken the precaution of showing this document to Dr Saraf and his Attorney and to Mr Jagtiani. Dr Saraf and his Attorney says that they had absolutely no indication that their clients were doing anything of this kind.
5. This practise of trying to intimidate and browbeat Judges is to be deprecated in the strongest possible terms. It has been deprecated by the Supreme Court. Once parties are before the Court, there is not the slightest possibility of them writing private. communications either to the Court to the Hon'ble the Chief Justice. This conceivably interferes with the administration of justice and is very likely a contempt of Court. If the Defendants are aggrieved by any order that is passed by the Court, remedies in law are available to them and I have no doubt that their lawyers will advise them appropriately. The one thing that is not open to any litigant is to make allegations of this kind. Apart from anything else, this is a blatant attempt at forum shopping. It will not succeed.
6. A copy of this order is to be placed along with letter before the Hon'ble The Chief Justice for further directions.
7. I also note that yesterday was not the first hearing of the matter, but was the fourth hearing of the matter. It was listed for orders yesterday. It may also be noted that the allegations that the Defendants have not been given an opportunity of hearing is clearly incorrect. The matter has been adjourned. Defendants Nos. 1 and 2 have filed an Affidavit in Reply. This is by no means a short Affidavit in Reply. It runs to some 208 pages with annexures.
8. Defendant No. 3, despite an opportunity, has not filed an Affidavit in Reply and instead has filed an IA yesterday seeking some time on medical grounds. His Attorney tells me today that a short Affidavit in Reply from Defendant No. 3 is ready.
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9. All of this completely belies the allegation that the Defendants have not been afforded adequate opportunity.
10. In the meantime, I am proceeding to deal with the matter on merits and I am also proceeding to issue a contempt notice against all three Defendants on the basis of this document.
11. At this stage, Dr Saraf and his Attorneys request that the matter be kept tomorrow so that they can take a discharge as neither of them are inclined to continue in the matter. I will accept that request but will request the Advocate on record to communicate a copy of this order by WhatsApp, and if possible in hard copy to the Defendants.
12. All three Defendants are to remain personally present in Court tomorrow, 13th October 2021. They may engage fresh Advocates, if they so wish. Even if they do so, their personal presence is required in Court. The online option is not available to them.
13. List the matter first on board on 13th October 2021. The Court will sit at 9.30 am tomorrow, 13th October 2021.
14. Liberty to Dr Saraf and his Attorneys to take a copy of the letter from the Court records.
15. Previous order, if any, to continue until next date.
16. All concerned will act on production of a digitally signed copy of this order."
3. After I made that order and issued it, later in the day yesterday, I received, first, an unsigned document from the 3rd Defendant inter alia containing something like an apology, some explanation on merits, and then saying there was a misunderstanding. This morning, I have received the same Page 4 of 8 13th October 2021 4-IAL-18777-2021 IN S-178-2021.DOC document again but signed by the 3rd Defendant. He is present with his parents, Defendants Nos. 1 and 2.
4. I am not going to accept this document or its apology or statements unless it is sworn before my Associate. The 3rd Defendant is obviously sufficiently conversant in English and he has signed the document so he should have no difficulty understanding this.
5. He must explain his affidavit/statement to his parents in a language they understand. To be abundantly sure, so will a translator from the Court.
6. The Defendants' Advocates have taken a discharge. I will give the Defendants time to engage new Advocates and will place the matter on 20th October 2021, first on board.
7. No further Affidavits are to be filed by Defendants Nos. 1 and
2. The 3rd Defendant has filed an IA seeking time to file a short Affidavit. This may be done on or before 14th October 2021 at the latest.
8. I believe I should now provide some context to how this matter has unfolded before me. Today must be the sixth or the seventh hearing of the matter. This puts an end to the absurd allegations by the 3rd Defendant, now withdrawn, of the Court 'being in a hurry'. There is also an Affidavit in Reply by Defendants Nos. 1 and 2 that runs into nearly 210 pages. Dr Saraf, when he was Page 5 of 8 13th October 2021 4-IAL-18777-2021 IN S-178-2021.DOC engaged by the Defendants took me through that Affidavit and some of the annexures to it.
9. The controversy, very shortly stated, relates to a Flat No. 302, third floor, A wing, Saanidhya, 22/A, Walkeshwar Road, Walkeshwar, Mumbai 400006. This is about 1360 carpet area with a car parking space.
10. Between the parties there was an Agreement for Sale dated 16th November 2019 for a total consideration stated in the Agreement for Rs. 10.85 crores.
11. The document said that while Rs. 2.51 crores was paid in advance, a balance of Rs. 8,23,15,000/- was to be paid against possession. There is no doubt that from 20th November 2019, the Defendants have been in possession. The circumstances of this are not material today -- the Plaintiffs claim the Defendants wanted to enter the flat for a pooja or some ceremony. In good faith, the Plaintiffs say, they permitted this. The Defendants never left. They never paid the balance. That is their case.
12. The Defendants claim that the Plaintiffs title to the flat is defective. The 3rd Defendant now makes some allegations of fabrication and fraud. There is material to indicate that the Defendants Nos. 1 and 2 paid a certain further amount to the Plaintiffs, but at their request, the Plaintiffs cycled some of this back to the 3rd Defendant. According to the Plaintiffs, there is today due from Defendants Nos. 1 and 2 Rs. 7.84 crores. According to the Page 6 of 8 13th October 2021 4-IAL-18777-2021 IN S-178-2021.DOC Defendants, they have paid Rs. 5.36 crores to the Plaintiffs, and therefore, the amount payable is much less. What is not in doubt is that the Defendants have not paid the full stated consideration price but are in possession of the Walkeshwar flat. They claim they can continue in possession of the flat, which they have not fully paid for, delay paying the balance consideration (even the lower amount they admit is due, leave alone the amount claimed by the Plaintiff ) and yet maintain that they should suffer no consequence, and no order at all should be made against them.
13. This is the stage at which we were two days ago when Dr Saraf then for the Defendants was addressing me. I was clear that there would have to be an injunction against the Defendants from creating third party rights. There was some discussion about the possibility of a Court Receiver, and whether this should or should not be accompanied by an order of deposit, and, if so, in what amount. Necessarily, there was a discussion about what should be the consequences if there was a failure to deposit. It was at this stage that the matter was stood over to the next day when the 3rd Defendant embarked on this remarkably ill-advised foray into a frontal assault on the Court itself. This is the necessary context.
14. I am today granting the injunction against the Defendants from creating any third party rights in respect of the flat in question. They will not transfer, alienate, part with possession, encumber or create any form of third party rights including giving on a leave and license.
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15. That is not the end of the ad-interim relief that I have in mind. I will give these Defendants, though they do not deserve it, an opportunity until 20th October 2021. By that time, they must engage new lawyers. I will be taking up the question of whether there should be a cash deposit order against them or a Receiver or one in the alternative to the other. I am not deciding the amounts. I leave it to the Defendants' lawyers to make their submissions in this regard on that date. I am noting this today so that the Defendants' new lawyers have no reason to seek further time, and so they can address themselves to the precise question.
16. I will not, however, hear the Defendants for one single minute or their Advocates unless I have a signed and affirmed apology and undertaking in the form already indicated above.
17. This matter is part-heard between today and the next date.
18. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 8 of 8 13th October 2021