Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.11682019 in Sum. Suit No.44762010
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1168 OF 2019
IN
SUMMARY SUIT NO. 4476 OF 2010
(HIGH COURT SUIT NO. 2580 OF 2010)
Daksha Prakash Shah & Another …. Plaintiff
Versus
Vinod Keshavji Faria ….Defendant
Appearance:
Shri. Aditya Thakkar, Advocate for plaintiff.
Shri Devanshu P. Desai, Advocate for defendants.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 08/07/2019
ORAL ORDER
1) The notice of motion is filed by defendant to frame
the issues stated in the prayer clause of the notice of motion. The
notice of motion is supported by affidavit of Vinod Keshavji Faria.
He on oath stated the reason to frame the additional issues along
with the issues that have to be framed as per the pleading of the
parties.
2) The plaintiff filed affidavit of Prakash Shantilal Shah
in reply to the notice of motion and denied that the additional
issues are to be framed. The plaintiff has denied each and every
issue stated by the defendant to be framed in the reply. The
notice of motion is filed to delay the proceeding and hence to
dismiss the notice of motion.
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3) Heard Advoate Shri Devanshu P. Desai for defendant
and Advocate Shri. Aditya Thakkar for plaintiff. Perused contents
of notice of motion and reply supported by affidavit of respective
parties. I have also gone through the documents annexed to the
plaint.
3) Advocate Shri Devanshu Desai for defendant has
drawn my attention to the pleading as well as the document filed
by the plaintiff along with the plaint. The suit is not simplicitor
suit for recovery of money. It is on the basis of Memorandum of
Understanding. Advocate Shri. Desai had drawn my attention to
the Memorandum of Understanding filed by plaintiff dated nil to
show that plaintiff no.1 is not signatory to the said document.
Therefore, plaintiff no.1 couldn't have filed the suit against the
defendant. Advocate Shri. Desai for defendant during the
arguments has suggested the issues about time essence of
contract ready and willingness on the part of plaintiff to perform
the contract maintainability of the suit against plaintiff no.1 and
defendant has rightly terminated the Memorandum of
Understanding thereby forfeited the amount paid by the plaintiff.
4) On the other hand advocate Shri. Aditya Thakkar for
plaintiff during the argument stated that issue in respect of
defendant's termination of Memorandum of Understanding can
be framed as the burden will be cast upon the defendant to prove
the same. However, no additional issues are required to be
framed as issue no.1 covers all these aspects. The attempt is
made by the defendant to prolong the suit. Advocate Shri. Aditya
Thakkar has filed details of dates and events of the proceeding to
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show that the defendants have taken the dates with a view to
prolong the suit. Advocate Shri. Aditya Thakkar for plaintiff had
also drawn my attention to the documents filed along with the
plaint i.e. the letters issued by the plaintiff and replied by the
defendant to show that in the Memorandum of Understanding
there is no clause of time as essence of contract. It is only during
the communication the defendant put up the clause of time as
essence of contract which was denied by the plaintiff in their
reply letter.
5) On perusal of the contents of the plaint and the
written statement the plaintiff as well as defendants are agreed
that there was Memorandum of Understanding dated nil between
the parties in the year 2010. The defendant did not dispute about
the receipt of amount of Rs.14,31,000/ from plaintiff no.2 . The
dispute between the parties is about the compliance of the
Memorandum of Understanding. It is the case of the defendant
that time was essence of contract and as the plaintiff did not pay
the subsequent amount of Rs. 90,00,000/ within time, therefore
the amount is forfeited. The defendant in their written statement
para no.20 has specifically stated that in the letter the said letter
defendant had made it clear that if the transaction is not
completed on or before 15/4/2010, in that event the said
Memorandum of Understanding stands terminated and the
amount paid by plaintiff no.2 shall stand 'forfeited'.
6) On the other hand the plaintiff has claimed the relief
of recovery of Rs. 14,31,000/ from the defendant that was paid
to the defendant towards the contract to purchase office
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premises. In para no. 24 of the plaint the plaintiff stated that the
defendant is bound and liable to refund the plaintiff the above
amount along with interest @ 18% p.a. in para no.16 to 23 of the
plaint.
7) The pleadings of the plaintiff and defendant shows
that the dispute between the parties is on the basis of the
performance of the parties as agreed by them by Memorandum of
Understanding. The relief claimed by the plaintiff is only refund
of amount. Therefore, the issues which has been framed will
require to be recasted. Hence, the issues are to be recasted as per
the pleading of the parties and pass following order:
ORDER
1. The Notice of Motion is allowed.
2. The issues (Exh.30) dated
09/04/2018 are recasted.
3. Accordingly notice of motion is
disposed of.
(S.S. Nagur)
Date : 08/07/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 08/07/2019
Transcribed on : 08/07/2019
Signed on : 08/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
15/07/2019 & 1.23 P.M. : MRS. SHOBHA A. SHEKADE
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 08/07/2019
Order
Judgment/Order signed by the P.O. on : 08/07/2019
Judgment/Order uploaded on : 15/07/2019
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