Bombay High Court
Punam Co-Operative Housing Society Ltd vs Pratap Issardas Bhatia And 5 Ors on 23 December, 2021
Author: N. J. Jamadar
Bench: N. J. Jamadar
S-8494-2010-conptl-119-2010-w-s-196-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION/
IN ITS COMMERCIAL DIVISION
SUIT NO. 1894 OF 2010
Punam Co-Operative Housing Society Ltd. ...Plaintiff
vs.
Pratap Issardas Bhatia and Ors. ...Defendants
ALONG WITH
CONTEMPT PETITION (L) NO.119 OF 2010
IN
SUIT NO. 1894 OF 2010
Alok Agrwal ...Petitioner
vs.
Sonal Shrenik Mehta And 6 Ors. ...Contemnors
ALONG WITH
SUIT NO. 196 OF 2021
Punam Co-Operative Housing Society Ltd. ...Plaintiff
vs.
Pratap Issardas Bhatia and Ors. ...Defendants
....
Mr. Deepak Chitnis i/by Deepak Chitnis Chiparikar And Co., for the
Plaintiff.
Mr. M. Bhandari & Ms. Priyanka Kothari a/w Mr. Aziz Mohd. And S.
Taly, i/by S. Mohomedbhai and Co. for the Defendant Nos. 6 & 7 in
Suit No.1894 of 2010 and Defendant No.6 in Suit No.196 of 2021.
....
CORAM : N. J. JAMADAR, J.
DATE : 23rd DECEMBER, 2021. P.C.:
1. Heard the learned counsel for the parties.
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2. The learned counsel for the plaintiff has made a statement of admission and denial of the documents filed on behalf of the defendant Nos. 6 & 7 in original compilation of documents and additional compilation of documents.
3. The plaintiff has admitted in evidence the documents at Serial Nos. 4, 25, 26, 28, 31, 38, 39, 46, 59, 60, 63 to 70, 82, 89, 91, 93, 96, 98, 101, 102, 103, 105 & 111. The documents at Serial Nos. 89, 91, & 93 are already marked as P-1/20 to P-1/22.
4. The documents at Serial Nos. 4, 25, 26, 28, 31, 38, 39, 46, 59, 60, 63 to 70, 82, 96, 98, 101, 102, 103, 105 & 111 are marked as "Exhibit D-22" "Exhibit D-23" "Exhibit D-24" "Exhibit D-25"
"Exhibit D-26" "Exhibit D-27" "Exhibit D-28" "Exhibit D-29"
"Exhibit D-30" "Exhibit D-31" "Exhibit D-32" "Exhibit D-33"
"Exhibit D-34" "Exhibit D-35" "Exhibit D-36" "Exhibit D-37"
"Exhibit D-38" "Exhibit D-39" "Exhibit D-40" "Exhibit D-41"
"Exhibit D-42" "Exhibit D-43" "Exhibit D-44" "Exhibit D-45"
"Exhibit D-46" "Exhibit D-47", respectively.
5. The plaintiff has admitted the execution and existence of the documents at Sr. Nos. 10, 12 & 16. The plaintiff has admitted the execution and existence of the documents at Sr. No. 10, 12 & 16. However, the content/truth of the contents of the said documents are denied. The documents at Serial No.10, 12 & 16 are marked as Sajakali Jamadar ...2 ::: Uploaded on - 25/12/2021 ::: Downloaded on - 25/12/2021 21:41:17 ::: S-8494-2010-conptl-119-2010-w-s-196-2021.doc "Exhibit D-48", "Exhibit D-49", "Exhibit D-50", subject to proof of contents and truthfulness of the contents.
6. The defendant Nos. 6 & 7's first witness is present in the Court. Oath is administered to him.
ON S.A.
Name : Alok Aggarwal
Age : 55 years.
Occu. : Business
Address : 1, Puman Building, 67, Nepean Sea Road,
Mumbai - 400 006.
Further Examination-in-Chief of by Mr. Bhandari on behalf of Defendant Nos. 6 & 7. :
7. The affidavit-in-lieu of examination in chief is now shown to me. The affidavit-in-lieu of examination in chief is affirmed by me. It bears my signature. The contents of affidavit-in-lieu of examination in chief are true and correct.
8. The affidavit-in-lieu of examination in chief is marked as "Exhibit - "D-51".
9. The document at Serial No.2 is the photostat copy of the agreement dated 18th July, 1961. It is marked as Exhibit "DX-1" for identification.
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10. The document at Serial No.3 being the share certificate dated 30th May, 1966, is marked as "Exhibit D-52". (In view of the averments in Para No. 113 of the affidavit)
11. The documents at Serial Nos. 5, 6 & 7, are the letters/applications addressed/made by Sitabai Bhatia. They are marked as "Exhibit-DX-2", "Exhibit-DX-3", "Exhibit-DX-4" for identification.
12. The document at Serial no.8 is the correspondence by Assistant Engineer D-Ward (Building and Factories) to Smt. Sitabai Bhatia on 5th September, 1986. The said document is marked as "Exhibit-D-53." (In view of averments in Para No.73(iii) of the Affidavit)
13. The documents at Serial nos.- 9, 10, 11, & 13 are marked as "Exhibit-D-54" "Exhibit-D-48" "Exhibit-D-55" "Exhibit-D-56" (The documents are admitted in evidence by the counsel for the plaintiff at the stage of marking.)
14. The document at Serial No.14 is a letter addressed by Smt. Sitabbai Bhatia on 10th October, 1994. The document is marked as "Exhibit-DX-5."
15. The document at Serial No.15 purported to be a certificate issued on 16th April, 2006 is marked as "Exhibit-DX-6."
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16. The document at Serial No.17 is the report of the chairperson of the society dated 30th July, 2006. The document is marked as "Exhibit-D-57." (In view of averments in Para No.75 of the affidavit).
17. The document at Serial No.18 is addressed by me to the secretary of the society dated 30th May, 2007. The document at Serial No.18 is marked as "Exhibit-D-58." (In view of averments in Para No.67 of the affidavit).
18. The document at Serial No.19, which is the registered Sale Deed dated 30th May, 2007 is marked as "Exhibit-D-59." (In view of averments in Para No.67 of the affidavit).
19. The document at Serial No.20 is letter of possession from the defendant Nos. 1 to 5 in favour of defendant No.6. The document at Serial No.20 is marked as "Exhibit-D-60." (In view of averments in Para No.68 of the affidavit).
20. The document at Serial No.21 is the true copy of the FIR lodged by me on 31st May, 2007. The document at Serial No.21 is marked as "Exhibit-D-61." (In view of averments in Para No.94 of the affidavit).
21. The document at Serial Nos. 22 & 23 are the copies of the statements recorded by Police on 2nd June, 2007 and 5th June, Sajakali Jamadar ...5 ::: Uploaded on - 25/12/2021 ::: Downloaded on - 25/12/2021 21:41:17 ::: S-8494-2010-conptl-119-2010-w-s-196-2021.doc 2007. The documents at Serial No.22 & 23 are marked as "Exhibit - DX- 7" "Exhibit - DX- 8".
22. The document at Serial No.24 is the letter dated 5 th June, 2007 addressed by the defendants advocate to the society. The document at Serial No.24 is marked as "Exhibit-D-62." (In view of averments in Para No.99 of the affidavit).
23. The document at Serial No.27 is the letter dated 2 nd July, 2007 addressed by my advocate to the plaintiff's advocate. The document at Serial No.27 is marked as "Exhibit-D-63." (In view of averments in Para No.102 of the affidavit).
24. The document at Serial No.29 is the application made by me to the secretory of the society on 4th March, 2008. The document at Serial No.29 is marked as "Exhibit-D-64." (In view of averments in Para No.104 of the affidavit).
25. The document at Serial No.30 is the copy of the FIR lodged by me on 14th April, 2008. The document at Serial No.30 is marked as "Exhibit-D-65." (In view of averments in Para No.105 of the affidavit).
26. The document at Serial No.32 is the letter dated 21 st June, 2008 addressed by the advocate to the society. The document at Serial No.32 is marked as "Exhibit-D-66." (In view of averments in Para No.108 of the affidavit).
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27. The document at Serial No.33 is the true copy of the inspection extract for the year 2008-09 issued by the Asstt. Assessor & Collector, D, Ward, dated 5th December, 2008. The document at Serial No. 33 is marked as "Exhibit-D-67." (In view of averments in Para No.121 of the affidavit).
28. The document at Serial No.34 is marked as "Exhibit-DX-9." for identification.
29. The document at Serial No.35 is the inspection extract for the year 1994-95 issued on 12th November, 2009. The document at Serial No. 35 is marked as "Exhibit-D-68." (In view of averments in Para No.121 of the affidavit).
30. The document at Serial No.36 is marked as "Exhibit-DX-10." for identification.
31. The document at Serial No.37 is maintenance bill issued by the society. The document at Serial No.37 is marked as "Exhibit-D-
69." (In view of averments in Para No.122 of the affidavit).
32. The document at Serial No.40 is marked as "Exhibit-DX-11." for identification.
33. The document at Serial No.41 & 42 are marked as "Exhibit- DX-12" & "Exhibit-DX-13." for identification.
34. The document at Serial No.43, 44 & 45 are marked as "Exhibit-DX-14" "Exhibit-DX-15" "Exhibit-DX-16" for identification.
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35. The document at Serial No.47 is marked as "Exhibit-DX-17" for identification.
36. The document at Serial Nos.51 to 53 being photographs are marked as "Exhibit-D-70" "Exhibit-D-71" and "Exhibit-D-72" (In view of averments in Para No.120 of the affidavit).
[Deferred due to Recess.] (N. J. JAMADAR, J.) [DW-1 resumed on a fresh SA :]
37. The document at Serial No.54 being titled as Written Argument in Revision Application No. 483 of 2008 in Appeal No.6 of 2008 is marked as "Exhibit-DX-18"for identification.
38. The document at Serial Nos.55 to 58 are marked as "Exhibit- D-73" "Exhibit-D-74" "Exhibit-D-75" "Exhibit-D-76" (These documents are admitted on behalf of the plaintiff by Mr. Chitnis, the learned counsel for the plaintiff, during the course of the marking of documents).
39. The document at Serial No.61, the letter dated 18 th March, 2008, is marked as "Exhibit-D-77" (The document is admitted by Mr. Chitnis, the learned counsel for the plaintiff at the stage of marking of documents, and in view of the averments in Para no.8 of the affidavit as regards the proof of contents).
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40. The document at Serial No.62 are the postal acknowledgments by various authorities. The documents at Serial No.62 are marked as "Exhibit-D-78 collectively."
41. The document at Serial No.71 being the letter dated 7 th September, 2016 addressed by the advocate of the defendant to the advocate for the plaintiff is marked as "Exhibit-D-79" (In view of averments in Para No.10 of the affidavit).
42. The document at Serial No.72 is the attested true copy of the photostat copy of blue print purported to be issued by the Administrator, Poonam Cooperative Housing Society. The document at Serial No.72 is marked as "Exhibit-DX-19" for identification.
43. The document at Serial No.73 is marked as "Exhibit-DX-20"
for identification.
44. The document at Serial Nos.74 & 75 being photographs are marked as "Exhibit-D-80" and "Exhibit-D-81" (Subject to objection regarding proof of contents.) (In view of averments in Para No.24 of the affidavit).
45. The document at Serial No.79 being receipt dated 10 th February, 2006 is marked as "Exhibit-D-82" (In view of averments in Para No.28 of the affidavit).
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46. The document at Serial No.80 being the copy of public notice dated 14th February, 2006 is marked as "Exhibit-D-83" (In view of averments in Para No.30 of the affidavit).
47. The document at Serial No.81 is the copy of form No.20(2) having consent of the transferee. The document at Serial No.81 is marked as "Exhibit-D-84" (In view of averments in Para No.32 of the affidavit).
48. The document at Serial No.83 is the letter dated 6 th April, 2006 addressed by the defendant No. 6 to defendant No.1. The document at Serial No.83 is marked as "Exhibit-D-85" (In view of averments in Para No.35 of the affidavit).
49. The document at Serial No.84 is the letter dated 30 th May, 2006 addressed by the defendant No. 6 to defendant Nos.1 to 5. The document at Serial No.84 is marked as "Exhibit-D-86" (In view of averments in Para No.43 of the affidavit).
50. The document at Serial No.85 is the letter dated 5th July, 2006 addressed by Advocate for the defendant Nos.1 to 5 to defendant No.6. The document at Serial No.85 is marked as "Exhibit-P1/18".
51. The document at Serial No.86 is the letter dated 18 th July, 2006, addressed by the defendant No. 6 to M/s. N. N. Vaishnawa & Co. The document at Serial No.86 is marked as "Exhibit-D-87" (In view of averments in Para No.46 of the affidavit).
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52. The document at Serial No.87 is already marked as "Exhibit-P- 1/19".
53. The document at Serial No.88 is the letter dated 1st August, 2006 addressed by the Advocate for defendant No. 6 to M/s. N. N. Vaishnawa & Co. The document at Serial No.88 is marked as "Exhibit-D-88" (In view of averments in Para No.48 of the affidavit).
54. The document at Serial No.89 is already marked as "Exhibit-P- 1/20".
55. The document at Serial No.90 is the letter dated 24 th August, 2006 addressed by the defendant No. 6 to M/s. N. N. Vaishnawa & Co. The document at Serial No.90 is marked as "Exhibit-D-89" (In view of averments in Para No.50 of the affidavit).
56. The document at Serial No.91 is already marked as "Exhibit-P- 1/21".
57. The document at Serial No.92 is the letter dated 2 nd September, 2006 addressed on behalf of defendant No. 6 to M/s. N. N. Vaishnawa & Co. The document at Serial No.92 is marked as "Exhibit-D-90" (In view of averments in Para No. 52 of the affidavit).
58. The document at Serial No.93 is already marked as "Exhibit-P- 1/22".
59. The document at Serial No.94 is the letter dated 11 th December, 2006 addressed by Advocate for defendant No. 6 to M/s.
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60. The document at Serial No.95 is the letter addressed on behalf of defendant No.6 to M/s. N. N. Vaishnawa & Co. on 26 th December, 2006. The document at Serial No.95 is marked as "Exhibit-D-92" (In view of averments in Para No. 60 of the affidavit).
61. The document at Serial No.97 is the letter dated 4 th April, 2007 addressed by the defendant No. 6 to Society. The document at Serial No.95 is marked as "Exhibit-D-93 collectively". (In view of averments in Para No. 63 of the affidavit).
62. The document at Serial No.99 is marked as "Exhibit-DX-21"
for identification.
63. The document at Serial No.100 is the letter dated 2 nd June, 2007 addressed by the defendant No.1 & 6 to the plaintiff. The document at Serial No.100 is marked as "Exhibit-D-94" (In view of averments in Para No.95 of the affidavit).
64. The document at Serial No.104 being the copy of the order passed by the Divisional Joint Registrar, Co-op. Societies Mumbai. Division Mumbai, is marked as "Exhibit-D-95". (In view of averments in Para No.114 of the affidavit).
65. The document at Serial No.106 is marked as "Exhibit-DX-22".
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66. The document at Serial No.107 is the letter dated 21 st April, 2009 addressed by the defendant to Assistant Engineer, D-Ward, BMC. The document at Serial No.107 is marked as "Exhibit-D-96"
(In view of averments in Para No.117 (ix) of the affidavit).
67. The document at Serial No.108 is the reply to the letter dated 9th July, 2009 issued by BMC. The document at Serial No.108 is marked as "Exhibit-D-97" (In view of averments in Para No.117(x) of the affidavit).
68. The document at Serial No.109 is the order dated 29 th September, 2009 passed by Municipal Corporation for approval of part regularization and part proposed internal and alteration and repair. The document at Serial No.109 is marked as "Exhibit-D-98"
(In view of averments in Para No.117 (xii) of the affidavit).
69. The document at Serial No.110 is marked as "Exhibit-DX-23" .
70. The document at Serial No.112 is the certificate under Section 65B of Indian Evidence Act, 1872 given by the deponent. The document at Serial No.112 is marked as "Exhibit-D-99" (In view of averments in Para No.135 of the affidavit).
71. The document at Serial No.113 is postal acknowledgment in respect of the communication dated 21st June, 2008. The document at Serial No.113 is marked as "Exhibit-D-100" (In view of averments in Para No. 108 of the affidavit).
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72. Further examination-in chief is complete.
73. Cross examination be recorded on Commission by Ms. Mahek Bookwala, the learned Commissioner, who has recorded the cross examination of the plaintiffs' witnesses, on the same terms and conditions on which she was initially appointed as Commissioner.
74. The learned Commissioner is requested to complete cross examination and submit report by 3rd January, 2022.
75. The matter be listed on 4th January, 2022.
76. On 4th January, 2022, the defendant Nos. 6 & 7 shall file affidavit-in-lieu of examination in chief of the rest of the witnesses, whom they propose to examine.
(N. J. JAMADAR, J.)
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