Bombay High Court
Haji Ismail Habib Musafirkhana Trust ... vs Yusuf Saleh Mohammad Jafarani 35 Ors. ... on 28 March, 2019
Author: G.S. Patel
Bench: G.S. Patel
903-NMSL699-19.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 699 OF 2019
IN
NOTICE OF MOTION NO. 125 OF 2018
IN
SUIT NO. 3299 OF 2003
Shoeb Zakaria Noorani ...Applicant
In the matter between
Haji Ismail Haji Musafirkhana Trust ...Plaintif
Versus
Yusuf Saleh Mohammad Jafarani & Ors ...Defendants
And
The Court Receiver, High Court, Bombay ...Respondent
Mr VV Tulzapurkar, Senior Advocate, with Farhan Dubash, Denzil Arambhan, Apeksha M & Shlok B, i/b Wadia Ghandy & Co., for the Plaintiff.
Mr Sean Wassoodew, i/b A Tripathy, for the Applicants in NMSL/699/2019 Mr Ivor P D'Cruz, for the Respondent.
Ms Sayli Apte, i/b PG Lad, for Defendant No. 38-MHADA. Mrs Kavita Ambekar, Ist Assistant to the Court Receiver.
CORAM: G.S. PATEL, J
DATED: 28th March 2019
PC:-
1. The application is by original Plaintif No. 4, Shoeb Zakaria Noorani, one of the six original Plaintifs. All six were deleted as Page 1 of 4 28th March 2019 ::: Uploaded on - 29/03/2019 ::: Downloaded on - 30/03/2019 01:53:22 ::: 903-NMSL699-19.DOC Plaintifs by my order dated 14th June 2018. Original Plaintif No. 7, the Saifee Burhani Upliftment Trust ("SBUT") had already been impleaded as Plaintif No. 7. It applied for deletion of Plaintifs Nos. 1 to 6, and I allowed that amendment in paragraph 15 of my 14th June 2018 order.
2. SBUT came into the suit as a Plaintif by virtue of a conveyance dated 19th May 2016. By that document, one that is registered, Plaintifs Nos. 1 to 6, all Trustees or claiming to be the Trustees of the Haji Ismail Habib Musafirkhana Trust, conveyed the entire right, title and interest in that property at Pakmodia Street (i.e. the Musafirkhana building and the plot on which it stands) to SBUT. The conveyance specifically noted that Plaintifs Nos. 1 to 6 had filed the present suit. In clause 7 the original Plaintifs agreed that on and from the date of the conveyance, it would be SBUT which would prosecute the suit; that SBUT was already Plaintif No. 7; and SBUT would make the necessary application to delete the names of Plaintifs Nos. 1 to 6. Clause 7 has within it an unconditional consent by Plaintifs Nos. 1 to 6 to such an application for deletion of their names in this suit by SBUT.
3. This has to be seen in the context of the prayers in the plaint which are reproduced from pages 13 to 16 of the Affidavit in Support of the present Chamber Summons. There are very many prayers, but the second prayer is for vacant possession of the Pakmodia Street Building. The SBUT, as the registered owner, and as part of its cluster development in that area, has been pursuing this redevelopment project. To that end, it has taken several steps to get vacant possession from diferent occupants.
Page 2 of 428th March 2019 ::: Uploaded on - 29/03/2019 ::: Downloaded on - 30/03/2019 01:53:22 ::: 903-NMSL699-19.DOC
4. Mr Wassoodew on behalf of the present Applicants says that there are other claims against Defendants Nos. 1 to 3. But this tells us only part of the story. Who are Defendants Nos. 1 to 3, after all? In the suit they were said to be erstwhile trustees of the very Trust of which Plaintifs Nos. 1 to 6 claimed to be trustees. Defendants Nos. 1 to 3 have all passed away.
5. What Mr Wassoodew proposes is, to my mind, inconceivable. If this application were to be granted, there would be two diferent sets of Plaintifs, each represented by diferent set of Advocates, something that is wholly impermissible under our procedure and jurisprudence; and each set of Plaintifs would be pursuing a distinct set of reliefs against a diferent set of defendants. If as vendors, the six original Plaintifs believe that their rights or entitlements under the conveyance with the SBUT have been afected, or that they have not received that to which they were entitled, then their remedy is to adopt appropriate civil proceedings for enforcement of those obligations against SBUT, i.e. to sue on the document in question. There is no such relief in this suit, and, as against SBUT, now a fellow Plaintif, no such relief is possible. I can see no method by which one set of Plaintifs can seek a decree against another set of Plaintifs, which is what this application seeks to achieve. If the original Plaintifs wish to pursue any other relief against deceased Defendants Nos. 1 to 3 that is equally problematic. Even if these six original Plaintifs were to be brought back into the suit and transposed as Defendants, I do not see how they could then manage to the heirs of Defendants Nos. 1 to 3.
Page 3 of 428th March 2019 ::: Uploaded on - 29/03/2019 ::: Downloaded on - 30/03/2019 01:53:22 ::: 903-NMSL699-19.DOC
6. He submits that before deleting names of Plaintifs Nos. 1 to 6 the Court should have obtained their consent, because the Plaintifs Nos. 1 to 6 were the ones who brought suit. I do not think there is merit in this either. It is true that the six original Plaintifs were just that, but a good 13 years after they filed the suit, these original Plaintifs divested themselves of title by the registered conveyance to SBUT. Clause 7 of that very conveyance, which I have summarized above, records the consent of these six original Plaintifs to exit the suit entirely, i.e. to their deletion as plaintifs, to the continuance of the suit by SBUT alone, and to SBUT alone applying for that deletion.
7. Viewed from any perspective, what Mr Wassoodew proposes today is nothing but a rollback of the suit to a date before the conveyance and before my order of 14th June 2018. That is clearly impossible.
8. The Notice of Motion is, in my view, misconceived and not maintainable. The Notice of Motion is dismissed. There will be no order as to costs.
9. All contentions between the Applicants/original Plaintifs Nos. 1 to 6 and the present sole Plaintif, SBUT, are specifically kept open for appropriate proceedings.
(G. S. PATEL, J) Page 4 of 4 28th March 2019 ::: Uploaded on - 29/03/2019 ::: Downloaded on - 30/03/2019 01:53:22 :::