Bombay High Court
Damji R. Shah vs Kaizer Taher Mithaiwala And 6 Ors on 7 January, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
(2IAL-40120-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION(L) NO.40120 OF 2022
IN
SUIT NO.295 OF 2012
Damji R. Shah ] .. Applicant
IN THE MATTER OF
Kaizer Taher Mithaiwala ] .. Plaintiff
vs.
Shamima Taher Mithaiwala & Ors. ] .. Respondents
Mr.Mayur Khandeparkar a/w Nilesh Gala i/b Law Square for the Applicant.
Ms.Megha Chobadia h/f Poonam Madhwani for Defendant No.1. Mr.Prem Gidwani a/w Gauri Deshpande and Priyanak Tanna for Defendant Nos.2, 3 and 5.
CORAM : BHARATI DANGRE, J
DATE : 7th JANUARY, 2023.
P.C.
1] By the present Application the Applicant seek his impleadment as
Defendant in the suit filed by the Plaintiff, seeking partition of
properties of deceased Taher Hatim Mithaiwala.
2] The impleadment is sought on the ground that during the pendency of the Suit, some portion of the property, which forms part of the larger suit property has been sold to the Applicant by the Plaintiff 1/3 ::: Uploaded on - 12/01/2023 ::: Downloaded on - 28/05/2023 05:13:44 ::: (2IAL-40120-2022.doc under Memorandum of Understanding dated 10.10.2014 for a lawful consideration and on the terms and conditions set out therein. It is pleaded that the Plaintiff has received the entire sale consideration of his undivided share, right, title and interest in the property under the MoU and since the rights are created in favour of the Applicant, his impleadment in the Suit is necessary.
3] Mr.Khandeparkar, the learned counsel representing the Applicant state that he has served the Plaintiff and Affidavit of service shall be filed by him during the course of the day. The Plaintiff has chosen not to remain present.
Defendant Nos.2, 3 and 5 are represented by the learned counsel Mr.Gidwani and Defendant No.1 is represented by the learned counsel Ms.Chobadia.
4] When the Application is perused, it is seen that in Notice of Motion No.1537/2014, the Plaintiff himself has filed an Affidavit, wherein, he has made categorical statement to the following effect :
3] In compliance of the said Order, I hereby produce a copy of the MOU executed on 10 th October 2014 between me and one Mr.Damji R. Shah. Hereafter marked and annexed as Exhibit "B" is copy of the MOU execute on 10 th October, 2014. I submit that I have received entire consideration for the transaction stated in the said MOU. Hereafter marked and annexed as Exhibit "C" are receipts/bank statements. 4] The present Notice of Motion has been filed by the Applicant on 1st December 2014. I state that as apparent from the aforesaid records, MOU has been executed by me on 10 th October, 2014 i.e. much before filing of the captioned Notice of motion. Hence, the prayer as sought in the Notice of Motion cannot be granted. Without prejudice to the aforesaid, I retariate that I am entitled to deal with my share of property. I submit that the MOU is valid, legal and binding."2/3 ::: Uploaded on - 12/01/2023 ::: Downloaded on - 28/05/2023 05:13:44 :::
(2IAL-40120-2022.doc The Memorandum of Understanding is also annexed alongwith the Application.
5] The learned counsel for Defendant Nos.2, 3 and 5 upon instructions state that this Court has granted stay and in Notice of Motion No.1537/2014 the Plaintiff is restrained from creating third party interest. The said order, is however, not available with the learned counsel. He, therefore, seek some time.
Re-notify to 11.01.2023.
[BHARATI DANGRE, J] 3/3 ::: Uploaded on - 12/01/2023 ::: Downloaded on - 28/05/2023 05:13:44 :::