Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2024/19 in Suit No. 9591/90. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2024 OF 2019
(CNR NO. MHCC010056062019)
IN
SUIT NO. 9591 OF 1990
(CNR NO. MHCC010072732012)
(HIGH COURT SUIT NO. 140 OF 1990)
M/s. Palshetkar & Co. and Others ...Plaintiffs
Versus
Mangala Prakash Pradhan and Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 19th AUGUST, 2019.
Mr. Paresh S. Madkaikar, Advocate for Plaintiffs.
Mr. S.R.Ketkar, Advocate for Defendant Nos.5 to 8.
ORAL ORDER
This is a motion taken out by plaintiff for deletion of Issue
No.12. It runs as follows :
“Whether defendant nos. 5 to 8 prove that
plaintiff nos. 1 to 3, 11 to 14 have committed default in
payment of principal and interest required for
construction in violation of agreement dated
04/07/1994 ?”
2. Perused reply in detail filed by defendants 5 to 8.
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N/m No. 2024/19 in Suit No. 9591/90. 2 Order.
3. Ld. Advocate Madkaikar for plaintiffs submits that in view of
the scope under Order 14 Rule 1 and 2, issues are required to be framed
by the Court on material assertions by plaintiff and denials by the
defendant. This is a suit filed in the year 1990 before the Original Side
of the Hon'ble High Court for specific performance of the contract.
Pleadings are completed. The impugned agreement dated 04/07/1994
is not averred in plaint nor in written statement, therefore the
impugned issue will not arise before the Court. It is requested to peruse
the orders of the Hon'ble High Court in different notice of motion dated
07/07/1997 and 13/01/2009. It is added that it will widen the scope
of the present suit which will be beyond the issue under controversy.
4. It is continued by ld. Advocate Madkaikar for plaintiffs that in
view of the agreement between the parties dated 04/07/1994, the suit
no. 27/2013 is filed by the defendants 5 to 8 of present suit for recovery
of amount against the plaintiff of present suit for recovery of Rs.16
Crores. It is requested to delete Issue No.12.
5. Ld. Advocate S.R.Ketkar for defendants 5 to 8 requested to
note that in view of the order in the present suit some of the plaintiffs
were transposed as defendants 5 to 8. It is admitted that the agreement
dated 04/07/1994 is not part of the pleading. However the remaining
uncompleted construction came to be completed by then plaintiffs, who
are defendants 5 to 8 and some of the parties in view of the impugned
agreement dated 04/07/1994. The agreement dated 04/07/1994 is
part of the pleading in written statement. Accordingly, after completion
of the construction the possession of respective flats are given to six
members; and the defaulted six members have not received the
possession of their flats.
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N/m No. 2024/19 in Suit No. 9591/90. 3 Order.
6. Ld. Advocate Ketkar for defendants 5 to 8 submits that the
material relief in the present suit has become infructuous as the main
purpose has got completed, therefore no specific performance can be
directed to be completed by this Court. It is added that the purpose to
present suit is limited to the extent of consequential relief. It is
concluded that Issue No.12 is essential to narrate all the facts before the
Court. It is requested to reject the motion.
REASONS FOR THE ORDER
7. In view of Order 41 Rule 1 and 2 of the CPC, it is the duty of
the Court to frame the issue in view of material assertion of one side
and denial of other. The object of framing issue is to curtail evidence
and to inform the parties that what is the fact in issue.
8. It is admitted by ld. Advocate Madkaikar for plaintiffs that
plaintiffs are signatory in the impugned agreement dated 04/07/1994.
The factual aspect is not denied that in view of the agreement of 1994,
the remaining construction is completed and possession to six flat
members has been given. The remaining six flats are not possessed by
the members who have defaulted the payment.
9. It is necessary to peruse order of the Hon'ble High Court
dated 07/07/1997 wherein in para 9 it is observed as follows :
“It is undoubtedly true that the terms and
conditions of the agency will have to be fixed by this
Court. We have already indicated that the plaintiffs are
willing to deposit the entire balance amount. The
plaintiffs are also agreeable to bear the costs of the
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N/m No. 2024/19 in Suit No. 9591/90. 4 Order.
construction. In these circumstances, it will be totally
unjust to direct them to pay interest at this interim
stage. We are also not inclined to accede to the prayer
of Mr. Vahanvati to permit the defendant Nos.1 to 3 to
withdraw the amount. The builders have abandoned
the project midway, making the flat purchasers run from
pillars to post to get their flats as per the agreement. It
seems that the builders have also created some third
party interest. In these circumstances, it will not be
proper to allow them to withdraw the amount at this
interim stage.”
10. In continuation of aforesaid order the Hon'ble High Court has
directed the Receiver to complete the construction at the cost of
plaintiffs.
11. Ld. Advocate Madkaikar for plaintiffs requested to note that
as per order of the Hon'ble High Court dated 17/01/2009, it is observed
in para 10 that the impugned agreement is a interse agreement
between the parties, which is not subject matter of the suit or any
orders passed by this Court.
12. It is crystal clear that the agreement dated 04/07/1994
cannot be a part of the suit or pleading, as suit came to be filed in the
year 1990 i.e. before four years of the filing of the suit. However, prior
to reference to abovementioned para 10, it is necessary to peruse the
opening para of the order dated 17/01/2009. It runs as follows :
“The Court Receiver has submitted his report
dated 15th December 2007 bearing No.404/2007
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N/m No. 2024/19 in Suit No. 9591/90. 5 Order.
wherein the Court Receiver has interalia sought
directions against the plaintiff no.1 (now transposed as
defendant no.5) to hand over the possession of flats
bearing Nos.101, 102, 501, 502, 601 & 602 alongwith
the keys thereof to the Court Receiver forthwith and in
turn to hand over the said flats to the respective
plaintiffs / purchasers to get the said flats completed at
their own costs. The Court Receiver has also sought
directions against the plaintiff no.1 (now defendant
no.5) to forward the details of the certified account of
the constructions to get the said building completed
since 1st April 2002 upto 31st March 2007 to the Court
Receiver.”
13. In view of abovementioned circumstances and by consent of
the parties, the plaintiffs no.1, 2, 3 and 13 were transposed as
defendants 5 to 8. In the order of the Hon'ble High Court dated
13/01/2009, in paragraph no.3, it is made clear that the said
transposition of four plaintiffs as defendants shall not affect any of their
rights and/or contentions in any manner.
14. This is a suit filed in the year 1990. The impugned agreement
dated 04/07/1994 german between parties interse because of the
present suit filed before the Court. The majority of the facts are not
disputed by the parties that the construction work came to be
completed and six flat members have accepted the possession. In this
scenario, the fact in issue in present suit cannot be segregated from the
agreement dated 04/07/1994, even though it was not part of the basic
pleading. In view of the concept of resgestae the scope to relevancy of
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N/m No. 2024/19 in Suit No. 9591/90. 6 Order.
facts require to be widen. Therefore the Issue No.12 is necessary to
decide the rights between the parties as the agreement dated
04/07/1994 is referred by the Hon'ble High Court in various orders,
whereby the remaining construction is completed. Resultantly, there is
no merit in the motion. Hence the order :
ORDER
1. Notice of Motion No. 2024/2019 stands rejected.
2. Suit is 29 years old, parties may insist for expedite
hearing.
3. N/m No. 2024/19 stands disposed off accordingly.
(At the request of ld. Advocate Madkaikar, two
months time is given as next date for hearing.)
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 19/08/2019. Mumbai.
1. Dictated on : 19/08/2019.
2. Transcribed on : 20/08/2019.
3. Signed on : 21/08/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 2024/19 in Suit No. 9591/90. 7 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/08/2019. 5.37 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 19/08/2019.
Judgment/Order signed by P.O. on 21/08/2019.
Judgment/Order uploaded on 21/08/2019.
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