Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.877/2018 in Suit 7468/1983 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.877 of 2018
IN
S.C. SUIT NO. 7468 of 1983
IN
(HIGH COURT SUIT NO.1944 OF 1983)
(CNR.NO.MHCC010030242018)
Udesh Brijlal Kapoor .... Applicant
(Original Def. No.6)
Versus
Khandelwal Laboratories Pvt. Ltd. ….Respondent
....(Original Plaintiff)
Adv. Anuj Narulla for Applicant (Original Defendant No.6)
Adv. Merchant for Plaintiff.
Adv. Rozy Kapoor for Defendant No.5.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
C.R. No. : 32
Dated : 29th March, 2019.
ORDER
. Applicant (Original Defendant No.6) taken out this Notice
of Motion for
a) It be observe and clarify that the “No Objection” of
Defendant No.6 as recorded in the Roznama dated 24.08.2017 relates
to the compromise in respect of the share of Defendant No.1,2, & 7 in
the joint family properties only, between Plaintiff and Defendant Nos.1,
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N.M.No.877/2018 in Suit 7468/1983 2
2 and 7 and that the same may not be read as affecting or prejudicing
the 1/3rd share in the suit properties of the Defendant No.6.
b) It be order that the Suit to continue against defendant No.6
for adjudication of his right in the suit.
c) Pending the hearing and final disposal of this Notice of
Motion, no. Decree and/or Order be passed on the Consent Terms dated
24th August 2017 and the Plaintiff's and Defendant Nos.1, 2 and 7 be
restrained by an order and injunction of this Hon'ble Court from acting
upon and/or giving effect to and/or implementing the terms of the said
Consent Terms dated 24th August 2017 in any manner whatsoever.
d) Delay if any, in taking out the Notice of Motion be
condoned.
2. By way of this Notice of Motion, applicant want to place on
record that “No Objection” recorded by the court on 24.08.2017 in
relation to the Consent Terms signed by plaintiff and defendant nos.1, 2
and 7 was only in respect of the settlement relating the respective
shares of defendant nos.1, 2 and 7 in the suit property. Applicant being
not the party of the consent terms, hence consent terms not binding on
him. Negotiations between plaintiff and applicant could not be
fructified hence he has taken out this Notice of Motion for the purpose
of safeguarding his right, title and interest in the suit property.
Applicant prays that Notice of Motion be made absolute.
3. Plaintiff filed the reply. Applicant is guilty of suggestion
falsely since his entire case in the Notice of Motion is nothing but false
statement made on oath. Copy of the Consent Terms served on
applicant on 20.07.2017 at about 4.45 hours and on 21.07.2017
Advocate for the applicant had given his 'No Objection' to the Consent
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N.M.No.877/2018 in Suit 7468/1983 3
Terms. The Notice of Motion is taken out in the month of March 2018
after delay of 6 months. There is no explanation about the delay.
Defendant No.6 had given unconditional 'No Objection' and consent to
all the contents of the Consent Terms, therefore, now no other
interpretation can be given to the same. Moreover, in the order dated
24.08.2017 it is clearly recorded that suit proceeded further against
defendant no.5 which has now been upheld by the Hon'ble High Court.
Hence Notice of Motion be dismissed with cost.
4. Heard Ld. Adv. Shri. Narulla for the applicant and
Adv.Merchant for plaintiff.
5. Ld. Adv. Shri. Narulla for the applicant submitted that the
consent terms dated 24.08.2017 can not take effect as it affects the
rights of the applicant in the suit properties. As the compromise implies
injury to the applicant therefore, the compromise is not lawful.
6. I have perused the consent terms (Exh11), on these
consent terms, Ld. Adv. Shri. R.S.Reymond for the applicant had made
the endorsement “No Objection” and the said endorsement has been
made by the Adv. Shri. R.S. Reymond with the implied authority of the
applicant as applicant himself was present on 24.08.2017.
7. Ld. Adv. Shri. Narulla for the applicant submitted that
earlier Ld. Adv. Shri. R.S.Reymond was representing for the applicant
and he has tendered his affidavit vide Exh 32 on record that he had no
occasion either to peruse the consent terms or discuss the same with the
defendant no.6 prior tendering in the court.
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N.M.No.877/2018 in Suit 7468/1983 4
8. The draft of the consent terms was tendered to the
applicant on 21.07.2017 and the consent terms read and recorded by
the Ld. Predecessor of this court on 24.08.2017. Therefore, applicant
and Ld. Adv. Shri. R.S. Reymond had sufficient time (more than one
month) for perusal and discussion about the contents of Exh 11. After
satisfaction of them, Ld. Adv. Shri. R.S. Reymond consciously made
endorsement 'No Objection' on the consent terms. Therefore, the
affidavit of Ld .Adv. Shri. R.S.Reymond is nothing but after thought and
hence can not be considered. Now applicant can not wriggle out of the
compromise and retract the same by saying that 'No Objection' recorded
in the roznama may not be read for him as it affects and prejudice his
1/3rd share in the suit properties. The contention of defendant no.6 in
his written submission dated 07.03.2019 that due to miscommunication
or lack of communication on the part of his earlier advocate is not
acceptable to me and the delay on that count can not be consider and
condoned.
9. The Consent Terms dated 24.08.2017 were challenged by
defendant no.5 before the Hon'ble High Court in Writ Petition Stamp
No.27266/17. The Consent Terms are not set aside by the Hon'ble High
Court and are in intact as on todays date.
10. In view of above discussion, the contention of the advocate
for the applicant that Ld. Adv. Shri.Reymond and applicant had no
occasion for discussion about the contents of the Exh. 11 holds no
water. Present Notice of Motion is nothing but abuse of process of law.
Hence, I pass following order.
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N.M.No.877/2018 in Suit 7468/1983 5
ORDER
1. Notice of Motion No.877/2018 is dismissed with cost.
Date : 29/03/2019 (Pushpa N. Rao)
Ad hoc Judge
Bombay City Civil Court
Greater Mumbai.
Dictation Direct typed on computer : 29/03/2019.
Signed by HHJ on : 29/03/2019.
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 30.03.2019 at 03.05 pm
NAME OF THE STENOGRAPHER : P.P.Parab
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
29.03.2019
Judgment/Order signed by P.O. on 29.03.2019
Judgment/Order uploaded on 30.03.2019
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N.M.No.877/2018 in Suit 7468/1983 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF TYPIST
29/03/2019 at ( 11.42p.m.) Mr. S.D.Mahure
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
29/03/2019
JUDGMENT/ORDER signed by
P.O.on
29/03/2019
JUDGMENT/ ORDER uploaded on 29/03/2019
.
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