Bombay High Court
Kalpesh Hansraj Shah (Dharamshi) vs Ladha Mansi Momaya (Deceased) on 29 June, 2022
Author: Prithviraj K Chavan
Bench: G.S. Patel, Prithviraj K Chavan
23-OS-APP-54-2019.DOC
Uday
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 54 OF 2019
IN
TRUST PETITION NO. 4 OF 2014
Indukumar Ladhabhai Momaya & Ors ...Appellants
Versus
Jayantilal Ladhabhai Momaya & Ors ...Respondents
WITH
CHAMBER ORDER (L) NO. 13618 OF 2021
Kalpesh Hansraj Shah (Dharamshi) .. Appellants
Versus
Ladha Mansi Momaya (Deceased) .. Respondents
Mr Bharat H Mehta, a/w Devang Dinesh Parmar for the Appellants.
Mr Vineet N Jagtap, i/b Niranjan Jagtap & Co. for the Respondents.
Appellant No.5 - Kalpesh Hansraj Shah present in Court
CORAM G.S. Patel &
Prithviraj K Chavan, JJ.
DATED: 29th June 2022
PC:-
1. On 9th June 2022, we passed the following order:
"1. The Appeal arises from two orders dated 17th December 2014 and 12th January 2015 made by the Digitally signed by UDAY UDAY SHIVAJI JAGTAP SHIVAJI Date:
JAGTAP 2022.06.30
17:59:09
+0530
Page 1 of 4
29th June 2022
23-OS-APP-54-2019.DOC
learned Single Judge (Mrs Roshan Dalvi,J) in Trust Petition No.4 of 2014.
2. The eight Appellants before us were the original Petitioners. Before the learned Single Judge, they sought a declaration that the appointment of Respondents Nos.1 and 2 as Trustees of the subject Trust was invalid and that the 1st Petitioner, Indukumar L Momaya be appointed as Trustee.
3. By the impugned order, the learned Single Judge dismissed the Trust Petition.
4. The 5th Appellant is Mr Kalpesh Shah. He appears in person. He has previously been assigned an Advocate, whom he has purported to discharge. The Registry-level committee has previously not found him capable of arguing in person. Rather than waste time on those issues, we have in our discretion, permitted him to address. His submissions on Affidavits are borderline fantastic. He claims that he is entitled to several hundreds of crores of rupees from Trust funds and that he wants to be put in such funds. This is not the subject matter of the Trust Petition to begin with.
5. The additional problem here is that we do not see how Kalpesh Shah can independently argue an Appeal when he and seven other Appellants are duly represented by an Advocate, Mr. Bharat Mehta. There is no possibility of Appellants being independently represented. All Appellants must be reprsented by a single Advocate. If any Appellant wishes to separate from the group of Appellants, he must file hiw own appeal or must be transposed as a Respondent. Alternatively, he must make an arrangement to have the other Appellants transposed as Respondents. What Kalpesh Shah proposes, that he will argue the Appeal regardless of what the other Appellants want and regardless of the fact that there is an Advocate for all the Appellants, is impossible and impermissible.
6. Now we find that the two of the Appellants, viz., the 1st Appellant, Indukumar Momaya, and the 2nd Appellant, Riddhish Momaya, have in writing stated that they do not wish to prosecute the Appeal at all.
7. Mr Mehta's junior says that there are no instructions from Appellants Nos. 3, 4, 6, 7 and 8. Mr Bharat Mehta himself is extremely unwell and is unable to attend to the matter. At this stage, we do not even know whether Mr Mehta is in a position to give a discharge in favour of any other Advocate or whether Page 2 of 4 29th June 2022 23-OS-APP-54-2019.DOC Appellants Nos. 3, 4, 6, 7 and 8 also wish to withdraw from the Appeal.
8. Consequently, before we can hear Kalpesh Shah on any aspect of the matter, the position of the other Appellants will need to be ascertained. We will have to adjourn this matter by three weeks until 29th June 2022. By that time, we expect Mr Mehta or his junior to have obtained instructions from the other Appellants.
9. We make it clear, so that there is no ambiguity that -
(a) If all the other Appellants excluding Kalpesh Shah wish to withdraw, we will permit Kalpesh Shah to argue the Appeal alone and delete the names of the other Appellants;
(b) If the other Appellants (except for Appellant Nos. 1 and 2) wish to prosecute the Appeal, then all of them including Kalpesh Shah will have to be represented by a single Advocate and there will be no possibility at all of Kalpesh Shah arguing independently or in person;
(c) In the alternative to (b) above, i.e., if the other Appellants wish to prosecute the appeal and Kalpesh Shah does not want to align with them or be represented by a common advocate, he will have the option of being transposed as a Respondent or of separately filing of his own Appeal (subject to limitation and delay issues).
10. List the matter for orders, high on board on 29th June 2022."
2. Today, we are informed that all the other Appellants i.e. Appellants Nos.1 to 4 and 6 to 8 do not desire to prosecute the appeal. They seek leave to be deleted as appellants.That will not be possible because otherwise the appeal will not be competent. They will have to be transposed as Respondents from Respondent No.17 onwards. Whether they decide to appear or not appear is a separate matter. Appellant No.5 - Kalpesh Hansraj Shah will thus to continue as the only Appellant.
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3. Consequently, he has to make the necessary arrangements to amend the title of the Appeal and now show Appellants Nos. 1 to 4 and 5 to 8 as Respondents Nos. 16 to 24. Let this be done by 8th July 2022 without need of reverification.
4. We reject Mr Kalpesh Shah's submission that he does not want to transpose his erstwhile co-Appellants as Respondents. That is not in his interest.
5. Stand over to 8th July 2022.
(Prithviraj K Chavan, J) (G. S. Patel, J) Page 4 of 4 29th June 2022