Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 25019
CNR No. MHCC010013342019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.250 OF 2019
IN
SUIT NO.3622 OF 2008
(HIGH COURT SUIT NO.1040 OF 2008)
Babibai Moreshwar Patil & Ors. ...Plaintiffs.
V/s.
M/s. Om Enterprises & Ors. ...Defendants.
Appearances:
Ld. Adv Hetal Vithalani alongwith Adv. Umesh Tiwari for plaintiffs.
Ld. Adv Ms. Desai for defendant nos.1, 3 and 4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 07th FEBRUARY, 2019
ORDER
1. This is chamber summons taken by the plaintiffs for recasting and
deleting issues framed at Exh.6.
2. Plaintiffs contention is that plaintiffs have not filed draft issues
and issues were framed only on the basis of draft issues of defendants.
After perusal of issues, plaintiffs found certain irrelevant issues have
been framed. Plaintiffs further contention is that issue no.2 be recasted
by deleting word 'terminated'. Plaintiffs further contention is that it is
the case of the plaintiffs that agreements dated 22.03.1985, 09.03.1989
and 13.03.1989 were executed by the defendants only to raise the
finance, thus the words “by way of collateral security” be replaced with
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the word 'only' and accordingly issue no.3 be recasted. It further
contended that it is the case of the defendant nos.1, 3 and 4 that Deed
of Cancellation dated 29.03.1994 is a fraudulent and fabricated
document then, issue nos.5 and 6 be deleted and issue no.5 be framed
as “Whether the defendant nos.1, 3 and 4 prove that Deed of
Cancellation dated 29.03.1994 is a fraudulent and fabricated
document ?” It further contended that the defendant nos.2(a) to 2(c)
by registered Deed of Cancellation cum Confirmation dated 11.05.2015
expressly confirmed that by the Deed of Cancellation dated 29.03.1994,
the defendants have cancelled the agreements dated 29.03.1994 and
09.03.1989 is duly cancelled so, issue nos.5 and 6 needs to be deleted
and proposed new issue no.5 is to be added. It further contended that
there is no declarative and specific performance relief sought by him in
respect of Deed of Cancellation Cum Confirmation dated 11.05.2015 in
the suit. Moreover, as no suit is filed by the defendant nos.2(a) to 2(c)
as well as defendant nos.1, 3 and 4 for cancellation of Deed of
Cancellation Cum Confirmation dated 11.05.2015, the issue as to
whether the defendant nos.2(a) to 2(c) have legal rights to execute the
said Deed of Cancellation Cum Confirmation dated 11.05.2015 cannot
be framed in the present suit of the plaintiffs and the same needs to be
deleted. Plaintiff's further contention is that if issues are not recasted
or deleted, prejudice would be caused to the plaintiffs.
3. Defendant nos.1, 3 and 4 by filing say objected chamber
summons. Their contention is that chamber summons is moved to
delay the hearing of main suit and to postpone the cross examination
stage of the plaintiff no.6. It further contended that there is no
necessity for recasting of issue nos.2 and 3 and without termination,
previous agreement cannot be cancelled therefore, the word
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'Terminated' is necessary in issue no.2. It further contended that
plaintiffs contention is that by Deed of Cancellation dated 29.03.1994,
they have cancelled the previous agreement with the defendants by
returning the received consideration amount and the same is strongly
denied by the defendants therefore, burden to prove the said facts are
upon the plaintiffs therefore, suggested issue nos.5, 9 and 10 are not
relevant to decided the controversy. It further contended that plaintiffs
unnecessary shifting their burden upon the defendants to prove the
issues therefore, present chamber summons is required to be dismissed
with cost. The Court has properly framed the issues.
4. I have heard Advocates for plaintiffs and defendants.
5. Perused the pleadings and issues framed. In plaint para 7, the
plaintiffs themselves pleaded that plaintiff no.1 wanted finance
therefore, the aforesaid agreements was signed as and when by way of
collateral security to raise finance so, I find that there is no need to
recast issue no.3. According to plaintiffs, Agreement to Sale and Power
of Attorney were duly cancelled by and between the parties on
29.03.1994 so, the word 'Terminated' in issue no.2 is deleted.
6. So far as issue no.4 is concerned, plaintiffs are to prove the fact
that they have refunded amount of consideration of defendants so, it is
necessary. So far as issue no.5 is concerned, according to plaintiffs Deed
of Cancellation dated 29.03.1994 was legally and validly executed by
the defendants and according to defendants Deed of Cancellation dated
29.03.1994 was obtained fraudulently so, both issues are needs to be
decided independently so, proposed issue no.5 is accepted and
numbered as issue no.6 and original issue no.5 is maintained as it is.
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The proposed issue nos.9 and 10 are accepted. With this, chamber
summons is partly allowed and accordingly, I proceed to pass the
following order :
O R D E R
1. Chamber Summons No.250 of 2019 is partly allowed.
Recasted Issues:
1. Whether plaintiffs proves that, they have duly cancelled
Agreement dated 22.03.1985, Power of Attorney dated
22.03.1985 executed by the plaintiffs in favour of the
defendant no.2 ?
2. Whether the plaintiffs proves that they have duly cancelled
Development Agreement dated 09.03.1989, Power of
Attorney dated 09.03.1989 and Agreement dated 13.03.1989
executed by the plaintiffs in favour of the defendants ?
3. Whether plaintiffs proves that the Agreements dated
22.03.1985, 09.03.1989 and 13.03.1989 were executed by
defendants in favour of the plaintiffs by way of collateral
security to raise the finance ?
4. Whether the plaintiffs prove that they have refunded the
amount of consideration to the defendants ?
5. Whether the plaintiffs prove that Deed of Cancellation
dated 29.03.1994 is legal and executed by the defendants ?
6. Whether the defendant nos.1, 3 and 4 prove that the Deed
of Cancellation dated 29.03.1994 is a fraudulent and
fabricated document ?
7. Whether the plaintiffs prove that they have served a letter
dated 15.07.1994 to the defendants no.1 on 20.07.1994 ?
8. Whether the plaintiffs prove that they are entitled for
declaration that the conveyance dated 05.06.2007 bearing
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registration no.BDR/12/4376/2007 i.e., Exh.R to the plaint is
null, void, abinitio and not binding upon the plaintiffs in
respect of suit property ?
9. Whether the plaintiffs are entitled for declaration that Deed
of Conveyance dated 26.10.2009 bearing registration
no.9847/2009 between the plaintiff nos.1 to 5 being sellers
and plaintiff no.6 being purchaser is legal, valid and binding
upon the parties to suit ?
10. Whether the plaintiffs prove that, plaintiff no.6 is in
occupation and possessions at suit property being an owner ?
11. Whether the plaintiffs prove that the legal heirs of the
defendant no.2 have legal right to execute and register Deed
of Declaration cum Confirmation dated 11.05.2015 in favour
of the plaintiff no.6 ?
12. Whether the defendant nos.1, 3 and 4 prove that the
Agreements dated 22.03.1985, 09.03.1989 and 13.03.1989
and Power of Attorney dated 22.03.1985 and 09.03.1989
were valid, existing and subsisting as on 05.06.2007 i.e., date
of execution of Deed of Conveyance ExR to the plaint ?
13. Whether the defendant nos.1, 3 and 4 prove that they are
entitled and empowered to sign and execute the Deed of
Conveyance dated 05.03.2007 unilaterally for and on behalf
of plaintiff nos.1 to 5 ?
14. Whether plaintiffs prove that they are having vacant and
peaceful possession over suit property ?
15. Whether suit of plaintiffs is maintainable without joining
proper and necessary parties to present suit ?
16. Whether the plaintiffs are entitled for injunction as
sought ?
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17. What relief, order and decree ?
2. Chamber Summons No.250 of 2019 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 07/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 07/02/2019
Transcribed on : 07/02/2019
Signed on : 07/02/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
08.02.2019 3.16 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
07.02.2019
JUDGEMENT /ORDER signed by
P.O. on
07.02.2019
JUDGEMENT /ORDER uploaded
on
08.02.2019
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