Bombay High Court
Avyaay Anirudh Garg And 2 Ors vs Ajay Kumar Garg And 24 Ors on 9 March, 2021
Author: G. S. Patel
Bench: G.S. Patel
7-IAL2672-2021 IN SL2671-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 2672 OF 2021
IN
SUIT (L) NO. 2671 OF 2021
Avyaay Anirudh Garg & Ors ...Plaintifs
Versus
Ajay Kumar Garg & Ors ...Defendants
Dr Veerendra Tulzapurkar, Senior Advocate with Mr Virag
Tulzapurkar, Senior Advocate, Mr Chetan Kapadia, Mr
Vishal Kanade, Mr Jehan Mehta and Mr Akhil Tiwari, i/b M/s
Manilal Kher Ambalal & Co, for the Plaintifss
Mr Harshavardhan G Khambete, for Defendants Noss 1, 2, 4, 5 and
6s
Ms Ankita Pawar, for Defendant Nos 3s
Mr Akash Warang, for Defendants Noss 7, 8, 10 to 16, 19, 21, 23, 25s
ARUN Mr Satyan N Vaishnav, with Ms Nupur J Mukherjee, i/b M/s NN
Vaishnawa & Co, for Defendants Noss 18 and 24s
RAMCHANDRA
SANKPAL
Digitally signed
by ARUN
RAMCHANDRA
CORAM: G.S. PATEL, J
SANKPAL
Date: 2021.03.10
10:49:25 +0530
DATED: 9th March 2021
PC:-
1.This is a partition Suit.
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2. As the frst order of business today, I have a fveepage representation or application by Defendant No. 3, apparently addressed to the Hon'ble the Chief Justice, but placed before me. It seeks that the matter be removed from my assignment; efectively, a recusal application. It is thoroughly misconceived. It amounts to forum shopping.
3. I am now told that the letter by the 3rd Defendant is not in fact even a recusal application but is a "confdential letter" to the Hon'ble the Chief Justice. This is unspeakable. It is not open to parties to go behind the backs of judges to whom work is assigned in this fashion. I am retaining that letter on record and will ensure that a copy is given to the Advocates for the Plaintifs.
4. To recapitulate, I frst made an order on 29th January 2021 and then an order on 1st February 2021. Thereafter, twice in the last week, I have sat after Court hours to attempt an overall reconciliation of all disputes between Plaintif No. 3, the mother of the minor Plaintifs Nos. 1 and 2 and Defendant No. 3 (the 3rd Plaintif's husband). Those were not 'hearings' in any sense of the term. They were an attempt, initiated by me, to try and fnd a complete resolution of all disputes. During these meetings -- for want of a better word -- I explained to these two parties the importance of resolving these disputes, at least in the interest of the two minors. This has taken a considerable amount of time.
5. Being aware that what I have before me is a partition Suit, and the attempted reconciliation travels beyond it, I was only able to go a Page 2 of 8 9th March 2021 7-IAL2672-2021 IN SL2671-2021.DOC certain distance. Both sides, at my instance, gave me in confdence a list of their suggestions. These have not even been taken on record but I have permitted the parties to exchange them to see if the gap, which I believe is considerable, can yet be bridged.
6. Once again, yesterday -- and now at the specifc request of both these parties -- I sat after Court hours. The 3rd Defendant quite needlessly attempted to tell me that he was earning only Rs. 80,000/e to Rs.1 lakh a month. Prima facie, I thought this not credible having regard to where and how the parties are accustomed to living. But as I indicated this is also clearly irrelevant in the context of a partition Suit. I said so yesterday. I myself had said nothing at all about the 3rd Defendant's income or means. I only suggested that he would have to improve his ofer, just as I told the 3rd Plaintif that she would have to be more reasonable in her demands. It was the 3rd Defendant who became very agitated and gave me these fgures.
7. I was informed yesterday and also on the previous occasion that the Defendant's principal Counsel, Mr Subhash Jha, his son and his associate Mr Ghanshyam Upadhyay are all unwell having been afected by Covid. I made it clear at all times that I would not proceed on merits in their absence; the matter is listed today only to ensure that the flings are complete and that no further delay is occasioned in the matter for that reason.
8. None of this is a ground for recusal, and indeed, even in the application that is before me I fnd no ground for recusal. There is Page 3 of 8 9th March 2021 7-IAL2672-2021 IN SL2671-2021.DOC no reason why the 3rd Defendant should purport to record what transpired when a Court is attempting a settlement of what is essentially a family dispute. Such applications for recusal have been made and rejected systematically right up to the Supreme Court. Such attempts have consistently been deprecated. They will continue to be deprecated. I refuse to accept the application for recusal. I can of course say nothing at all about the application directed to the Hon'ble the Chief Justice to have the matter removed from my assignment, where it is otherwise assigned in the routine course. The 3rd Defendant may choose to participate or not participate in future hearings. That is entirely up to him. I intend to give his Counsel the fullest latitude when they are available and in good health to appear either physically or online.
9. I come now to the question of completion of flings. I must note that yesterday there was an application for leave to fle a Sure Rejoinder. I did not grant that leave yesterday and indicated that nobody has an inalienable right to fle SureRejoinders and keep continually fling Afdavits. I also did indicate that if I require a further Afdavit to be fled, I would so indicate and then grant time accordingly. That is where the matter rests today.
10. Filings so far have come to the stage of a Rejoinder and run up to page 687. Mr Vaishnava appears for Defendants Nos. 18 and 24. The other Defendants who have fled Replies will serve Mr Vaishnava with copies of their Replies. The Plaintifs will serve him with copies of their Rejoinders. This is to be done, if not already done, by the end of the day today. I am informed that Defendants Nos. 9, 17, 20, and 22, all corporate entities, have been needlessly Page 4 of 8 9th March 2021 7-IAL2672-2021 IN SL2671-2021.DOC joined and are not concerned with these disputes. They are not fling Afdavits in Reply. The statement is noted. I also note that no appearance has been entered so far on behalf Defendants Nos. 9, 17, 20 and 22.
11. I am not presently accepting the application by some of the Defendants to fle further Afdavits. Equally, I am not rejecting that application either today. I am told, frst, that the Plaintifs in their Rejoinder have made a submission that an adverse inference ought to be drawn against one or more of the Defendants for none disclosure of some documents. That is a legal argument and does not require a Afdavit in response. Having said that, it is perfectly clear that the Defendants are not required to give inspection of any documents on which they do not propose to rely. No adverse inference can readily be drawn against them in that circumstance. However, if they do seek to rely on a document and yet do not give inspection or copies of that document, then the Plaintifs may legitimately invite an adverse inference. This is a matter to be considered at an appropriate stage. It does not automatically require the fling of further Afdavits.
12. Whether or not a further Afdavit is indeed required from the Defendants will be considered once Mr Jha or Mr Upadhyay are available to more precisely place their case.
13. Second, I am told that there is some additional factual material that may have been omitted from the Afdavits in Reply and requires to be stated in a further Afdavit. But I am not told Page 5 of 8 9th March 2021 7-IAL2672-2021 IN SL2671-2021.DOC what that additional material is or even what aspect it touches. I am only told that Mr Jha or Mr Upadhyay will be able to identify that more precisely. Neither Mr Jha nor Mr Upadhyay are currently in a position to attend the hearing and, therefore, I am not either accepting or rejecting that application. The matter will be stood over to such time as Mr Jha is available and I will consider his submission on this ground as well. For the present, those contentions are left open.
14. Without leave of the Court, no further Afdavits are to be fled.
15. The recusal application fled by the 3rd Defendant personally is taken on record and is to be kept with the other papers.
16. Given the severity of Mr Jha's condition and the fact that Mr Upadhyay is also similarly afected, I am presently listing the matter for directions on 25th March 2021.
17. A copy of the application fled by the 3rd Defendant is to be given to the Advocates for the Plaintifs.
18. As to the 3rd Defendant's soecalled application, I will let it pass this once, and I do so because Mr Jha and Mr Upadhyay with all the beneft of their collective vast experience are not available to appropriately advise the 3rd Defendant. I am, however, cautioning him that this kind of communication conceivably amounts to contempt of Court and possibly interference with the administration Page 6 of 8 9th March 2021 7-IAL2672-2021 IN SL2671-2021.DOC of justice. If the 3rd Defendant wishes to understand what precisely this means he is best advised to consult Mr Jha or Mr Upadhyay.
19. In the facts of the case, after giving the Advocates for the Plaintifs a copy of the letter, the letter itself is to be retained in the safe custody of the Prothonotary and Senior Master. It is to be made available thereafter only at the request of the Court (i.e. the Court to which the matter is assigned or of course, to any Judge on the Administrative Side).
20. Previous orders will continue until the next date.
21. I also clarify that on the next occasion, it is entirely at the option of Mr Jha and Mr Upadhyay to join the hearing online if they so wish rather than coming to Court physically. The online VC link and ID are given below:
LOGIN LINK https://bombayhighcourt.webex.com/meet/rgebhc MEETING ID 918 926 070 At 2.30 pm post the lunch recess:
22. I have had the matter once again because I inadvertently missed a necessary direction. I also felt this was best done in the presence of all concerned and in fairness to the 3rd Defendant. The direction is this. A copy of the 3rd Defendant's letter along with a copy of this order is for, good order and completeness, to be placed before the Hon'ble the Chief Justice by the Prothonotary and Senior Master.
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23. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 8 of 8 9th March 2021