Ajay Gokuldas Shah And Anr vs John Edwerd Gomes And Ors. And Roslyn ... on 14 January, 2019

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Bombay High Court

Ajay Gokuldas Shah And Anr vs John Edwerd Gomes And Ors. And Roslyn ... on 14 January, 2019

Bench: G.S. Patel

                                                                     25-S818-83.DOC




 Shephali



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION
                 NOTICE OF MOTION NO. 401 OF 2014
                                        AND
                 NOTICE OF MOTION NO. 616 OF 2014
                                         IN
                               SUIT NO. 818 OF 1983


 Ajay Gokuldas Shah & Anr                                              ...Plaintiffs
      Versus
 John Edwerd Gomes & Ors                                            ...Defendants


Mr P Modi, with N Lashkari, M Sampat, i/b Little & Co, for the
     Plaintiffs.
Mr KT Kukreja, with Bhumika Gada and Suraj Dube, i/b Arvind
Manghirmalani, for the Applicant in NMS/401/14.


                               CORAM:       G.S. PATEL, J
                               DATED:       14th January 2019
 PC:-


 1.

By an order of 21st February 2018 I held that Notice of Motion No. 401 of 2014 and Notice of Motion No. 616 of 2014 which sought to set aside a consent decree dated 29th April 1983 would have to be tried and evidence would be required in both.

2. On 23rd October 2018, KR Shriram J noted a statement by Page 1 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:07 ::: 25-S818-83.DOC the learned counsel appearing before him that on the next date issues /points for determination would be presented. The matter is listed today under the caption of framing issues. I have a benefit of a draft prepared on behalf of the Plaintiffs. I have considered these and heard both sides. I will accept some of these issues while not accepting others. In addition, further issues presented by Mr Kukreja for the Applicants are required to be framed. The issues/points for determination are framed and these are appended to this order.

3. The Applicants shall, on or before 4th March 2019, file (i) the Evidence Affidavit of the Applicants'; (ii) an Affidavit of Documents; (iii) a Compilation of Documents; and (iv) a list of witnesses duly indexed and paginated. Copies of each of these will be served on the Advocates for the Defendants on or before that date.

4. There will be no extension of time. In default of compliance, the Motions will stand dismissed without further reference to the Court.

5. On the Applicants' complying with these directions, the matter will be taken up for marking of the Applicants' documents and further directions on 15th March 2019, irrespective of the caption under which the matter appears.

6. Discovery and inspection is to be completed and statements of admission and denial are to be exchanged in the meantime.

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7. Liberty to the parties to apply on that date or even on an earlier date for amendment of issues.

(G. S. PATEL, J.) Page 3 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:07 ::: 25-S818-83.DOC ISSUES/POINTS FOR DETERMINATION FRAMED ON 14TH JANUARY 2019 NOTICE OF MOTION NO. 401 OF 2014 AND NOTICE OF MOTION NO. 616 OF 2014 IN SUIT NO. 818 OF 1983

1. Whether the Defendants in the suit were properly served with the Writ of Summons and a true copy of the plaint?

2. Whether the Applicants prove that if some of the Defendants were not properly served, the Applicants are entitled to have the consent decree set aside on that ground as alleged by the Applicants?

3. Whether the Applicants prove that the signatures of the Defendants or the thumb impression of Defendant No. 2 or both were taken on blank papers as alleged by the Applicants inter alia in paragraphs 4(i) and 5(b) of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?

4. If the answer to issue No. 1 above is in the affirmative, then whether the Applicants prove that such blank sheets of paper as signed and impressed with the thumb impression of Defendant No. 2 were misused to fabricate the "Receipt", "Vakalatnama" and "Consent Terms"

(being Exhibits "52-A", "61" an "62" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) as Page 4 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:07 ::: 25-S818-83.DOC alleged by the Applicants in paragraph 33 of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?

5. Whether the Applicants prove that the signature of Defendant No. 1 on the revenue stamp on the Agreement/ Receipt dated 26th December 1982 (being Exhibit "52-A" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) is a forged signature as alleged by the Applicants at page 71, paragraph (vi), of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?

6. Whether the Applicants prove that the signature of the Defendant No. 1 on the vakalatnama dated 27th April 1983 (being Exhibit "61" to the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014) is a forged signature, as alleged by the Applicants at page 73/ paragraph (a) of the Affidavit dated 28th February 2014 in Support of the Notice of Motion No. 401 of 2014?

7. Whether the Applicants prove that the Power of Attorney (being Exhibit "61" to the Affidavit dated 28th February 2014 of Plaintiff No. 2 in Reply to the Notice of Motion No. 401 of 2014) is a forged and fabricated document as alleged by the Applicant No. 8 at page No. 585 in his Affidavit in Rejoinder dated 25th November 2014?

8. Whether the Applicants prove that the Consent Terms dated 28th April 1983, pursuant to which the Consent Decree dated 28th April 1983 in Suit No. 818 of 1983, was passed by the Court, Page 5 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:07 ::: 25-S818-83.DOC is a bogus/ fabricated document, as alleged by the Applicants at page Nos. 74 to 77 in the Affidavit dated 28th February 2014 in Support of the Notice of Motion?

9. Whether the present Notices of Motion are barred by the law of limitation?

10. Whether the Applicants are entitled to any reliefs as prayed for in the present Notice of Motion?

11 What order, including as to costs?

(G. S. PATEL, J.) Page 6 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:07 :::

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