Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2815 OF 2019
IN
SUIT NO.4358 OF 2007
Godrej & Boyee Manufacturing Company ... Plaintiff
V/s
1. Mr.Haroum Alim A.R.Yusuf & Ors. ... Defendant
APPEARANCE:
Advocate Renuka Lele for plaintiff.
Advocate Nitesh Parmar for defendant.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 27th January, 2020
ORDER
Plaintiff has taken out Notice of Motion on the ground that the
present suit is filed by the plaintiff against the defendant for seeking
decree of specific performance and further directing defendant nos.1 to
9 to execute a register deed of apartment conferring unit ownership on
the plaintiff in respect of Shop No.5,6,8, and 9 occupied by them in the
suit building situated at 47/49 with Nariman Point, Fort,Mumbai. It is
further submitted by the plaintiff that initially suit was filed in the
Hon'ble H.C. later on suit was transferred to this court. It is further
submitted that the defendants filed Notice of Motion bearing
No.813/2013 to which they are allowed to file written statement on
record relying on pleading of the parties issues are framed vide Exh4.
However, in the written statement defendant denied that the defendant
trust was under an obligation to sell the premises and therefore, the
issues are required to be recasted/additional issues for the
-- 1 of 3 --
2
determination of suit.
Since 17/7/2019 to till today the defendant failed to tender reply
to the Notice of Motion and therefore, the Notice of Motion is
proceeded without reply of defendants.
I have heard Ld.Counsel for plaintiff, Ld.Counsel for defendant is
present at the time of argument. Both the parties are come to the
conclusion at the time of argument that the proposed issue suggested by
plaintiff in Notice of Motion is similar with Issue No.2 in Exh4. Both
the Ld.Counsel submitted that as per the proposed issues it was
suggested that the defendant no.7 trust was under an obligation to sell
the suit premises to the plaintiff pursuant to the resolution passed by
the board or trustees on 1/3/2000 and pursuant to the order passed by
the Hon'ble High Court on 1/2/2002 in Trust Petition No.2/2001.
However, the proposed issues is already cover by my Ld.Predecessor
while framing issue no.2 in Exh4 and therefore, both the counsel are
agreed that the proposed issue need not require to be framed because
the subject already cover by Issue No.2 in Exh4. Plaintiff also prayed
to recaste issue regarding readiness and willingness to perform part of
contract. Admittedly, the dispute in between plaintiff and defendant in
respect of Specific Performance of Contract and the same is challenged
by defendant in the written statement and therefore, I am of the
opinion that burden is of plaintiff to prove readiness and willingness to
perform his part of contract if relying on pleading it is necessary to
recaste issue. If issue is recasted no prejudice would be caused to the
case of defendant. Moreover, both the parties are getting opportunity
to prove or disprove to recaste issue by adducing evidence. Under such
-- 2 of 3 --
3
circumstances, I come to conclusion that one issue be added in Exh4.
"Whether the plaintiff is ready and willing to perform his part
of contract".?
Hence, I proceed to pass following order.
ORDER
Notice of Motion No.2815 of 2019 is allowed.
The issue which is stated in the above order be included in Exh4.
Date:27/01/2020 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 27/01/2020
Typed on :27/01/2020
H.H.J.Signed on :27/01/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/01/2020 at 4.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
27/01/2020
JUDGMENT/ORDER signed by P.O. on 27/01/2020
JUDGMENT/ORDER uploaded on 27/01/2020
-- 3 of 3 --