Bombay High Court
M.B. Construction vs Vibhit Enterprises Pvt. Ltd on 1 April, 2019
Author: G. S. Patel
Bench: G.S. Patel
22-S172-11.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 172 OF 2011
AND
SUIT NO. 325 OF 2011
Vibhit Enterprises Pvt Ltd ...Plaintif
Versus
MB Constructions & Ors ...Defendants
Mr Gauraj Shah, i/b Kanga & Co, for the Plaintiffs in S/172/11 & for
the Defendant in S/325/11.
Mr Delaney Sylvester, i/b Dhru & Co, for the Defendant in
S/172/11 & for the Plaintiff in S/325/11.
Mr Pradeep Bakhru, with Mitakshi Lakhani, i/b Wadia Ghandy &
Co, for Defendants Nos. 6 to 9.
CORAM: G.S. PATEL, J
DATED: 1st April 2019
PC:-
1.Issues are framed and these are appended to this order.
2. The two suit are interlinked. Suit No. 172 of 2011 seeks specific performance of a Sale Agreement dated 18th July 2005. One of the contentions taken and, therefore, an issue raised, is whether a Deed of Mortgage also dated 18th July 2005 was a collateral security in the Sale Agreement. Suit No. 325 of 2011 is a mortgage Page 1 of 7 1st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC redemption suit in respect of the very same Deed of Mortgage. The Plaintif in the mortgage suit is the 1st Defendant in the specific performance. In the mortgage suit the issue framed is whether it is the sale agreement (of which specific performance is sought) that was collateral security for the repayment of the mortgage debt.
3. I have noted this illustratively because it seems to me self- evident that there is bound to be a considerable overlap not only between the issues in the two suits but also between the documentary and oral evidence in both suits. Both documents in question were signed on the same date. While the specific performance suit will be tried first, there is no doubt that the evidence that is taken in the specific performance suit will at least partially overlap the evidence required in the mortgage suit. Also, the answers to one or more of the issues in the specific performance suit will have a direct bearing on some issues in the companion mortgage suit.
4. I anticipate a problematic situation if directions are not issued immediately. Specifically, there is every likelihood that at some point in the trial, one or the other side will seek to introduce the same witness more than once, first for the specific performance suit and then again in the mortgage suit. This will create inconsistencies, and there will be the inevitable allegations back and forth that a party is trying to improve its case or cover up gaps exposed in cross- examination by leading the evidence of the same witness all over again.
Page 2 of 71st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC
5. I will therefore direct that during the trial, the evidence that is to be taken both in examination-in-chief and in cross-examination will cover the issues framed today in both suits. The evidence in both suits will be taken in common.
6. Parties agree to begin with the evidence in the specific performance suit. Consequently, when the 1st Defendant in that suit leads evidence, it will be doing so as the 1st Defendant to the specific performance suit and also as the Plaintif to the mortgage suit.
7. It goes without saying that the right to rebuttal evidence will necessarily have to be reserved to the Plaintifs in both suits in respect of issues the burden of which is on their respective opponents.
8. The Plaintif in the specific performance suit, Vibhit Enterprises, shall, on or before 14th June 2019, file (i) the evidence affidavit of its first witness the Plaintif; (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.
9. Discovery and inspection is to be completed and statements of admission and denial are to be exchanged on or before 21st June 2019.
Page 3 of 71st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC
10. There will be no extension of time. In default of compliance, the suit will stand dismissed without further reference to the Court.
11. On the Plaintif complying with these directions, the matter will be taken up for marking of the Plaintif's documents and further directions on 28th June 2019, irrespective of the caption under which the matters appear.
(G. S. PATEL, J.) Page 4 of 7 1st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC ISSUES FRAMED ON 1ST APRIL 2019 SUIT NO. 172 OF 2011
1. Whether the agreement dated 18th July 2005 entered into between Plaintiff and Defendant No. 1 (being Exhibit "F" to the Plaint) is valid, subsisting and binding on the Plaintiff and all the Defendants?
2. Whether the Plaintiff has duly performed its obligations under the Agreement dated 18th July 2005 and was at all material times ready and willing to continues to be ready and willing to perform its part of the obligations?
3. Whether under the agreement dated 18th July 2005 time was of the essence of the Contract?
4. Whether the Plaintiff proves that Deed of Mortgage dated 18th July 2005 (being Exhibit "G" to the Plaint) was entered into only to create collateral security in favour of the Plaintiff for due performance of the obligation of Defendant No.1 under the Agreement dated 18th July 2005?
5. Whether the Plaintiff proves that conjoint reading of clause 5 & 11 of the Agreement dated 18th July 2005 clearly provide that the terms and conditions of the Agreement dated 18th July 2005 would prevail over the Deed of Mortgage dated 18th July 2005?
6. Whether the Defendants prove that the Agreement dated 18th July 2005 was caused by undue influence and is unconscionable and is liable to be set aside under the provisions of Section 19A of the Contract Act as set out in paragraph Page 5 of 7 1st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC 8 of the Written Statement of Defendants Nos. 1 to 3?
7. Whether the Defendants prove that the Agreement dated 18th July 2005 is a clog on equity of redemption of Mortgage as set out in paragraph 8 of the Written Statement of Defendants Nos. 1 to 3?
8. Whether Defendants Nos. 6 to 9 prove that it is not bound by the actions of Defendant No. 1 (one of the member of AOP)?
9. What reliefs?
10. What interest?
11. What costs?
(G. S. PATEL, J.) Page 6 of 7 1st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 ::: 22-S172-11.DOC ISSUES FRAMED ON 1ST APRIL 2019 SUIT NO. 325 OF 2011
1. Whether the Plaintiff proves its is entitled to redeem the mortgage created in respect of property bearing C.S. No. 182 and 1/83 situated at Parel, Sewree under Deed of Mortgage dated 18th July 2005?
2. Whether the Plaintiff proves the Agreement for Sale dated 18th July 2005 was executed as collateral security for performance / repayment of the Mortgage debt?
3. Whether the Collateral Security Agreement dated 18th July 2005 is duly terminated, void and is liable to be cancelled along with the Cheque No. 804801 and 804802 dated 6th January 2008 aggregating to Rs.13,18,98,100/-?
4. Whether the Plaintiff proves it is entitled to damages in a sum of Rs.20,00,000/- form Defendants?
5. In the event the answer to Issue (1) is in affirmative, whether the Defendant is liable to execute the Deed of Re-conveyance and Release of Mortgage?
6. Whether the Defendant proves that the Suit is bad for non-joinder of parties as alleged in paragraph 5 of the Written Statement?
7. Whether the Defendant proves that there was no valid or legal tender of any alleged mortgage money as contended in paragraph 6 of the Written Statement?
8. What Order/Decree?
(G. S. PATEL, J.) Page 7 of 7 1st April 2019 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 01:14:36 :::