Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3988/2019 in Suit No. 8842/1993, 1 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3988 OF 2019
(CNR NO. MHCC010110262019)
IN
SUIT NO. 8842 OF 1993
(CNR NO. MHCC010100482012)
(HIGH COURT SUIT NO.1440 OF 1993)
Kamal J. Chandwaney ...Plaintiff
Versus
M/s. Daya Builders and others ...Defendants
AND
NOTICE OF MOTION NO. 3986 OF 2019
(CNR NO. MHCC010110242019)
IN
SUIT NO. 8961 OF 1993
(CNR NO. MHCC010101672012)
(HIGH COURT SUIT NO. 1922 OF 1993)
Pinky N. Hotchandani ...Plaintiff
Versus
M/s. Daya Builders and others ...Defendants
AND
-- 1 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 2 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
NOTICE OF MOTION NO. 3987 OF 2019
(CNR NO. MHCC010110302019)
IN
SUIT NO. 9008 OF 1993
(CNR NO. MHCC010102142012)
(HIGH COURT SUIT NO. 2076 OF 1993)
Narain Hotchandani ...Plaintiff
Versus
M/s. Daya Builders and Others ...Defendants
AND
NOTICE OF MOTION NO. 3984 OF 2019
(CNR NO. MHCC010110222019)
IN
SUIT NO. 9279 OF 1993
(CNR NO. MHCC010104852012)
(HIGH COURT SUIT NO. 3067 OF 1993)
Heera J. Chandwaney ...Plaintiff
Versus
M/s. Daya Builders and others ...Defendants
AND
-- 2 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 3 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
NOTICE OF MOTION NO. 3985 OF 2019
(CNR NO. MHCC010110322019)
IN
SUIT NO. 9280 OF 1993
(CNR NO. MHCC010104862012)
(HIGH COURT SUIT NO. 3068 OF 1993)
Jhamat Chandwaney ...Plaintiff
Versus
M/s. Daya Builders and others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 7th NOVEMBER, 2019.
Mr. Rafique, Advocate for Plaintiff.
Mr. K.C.Pandey, Advocate for Defendant Nos.1 to 6.
COMBINE ORDER
This is a combine order in N/m No. 3988/2019 in Suit No.
8842/1993 (H.C.Suit No. 1440/1993), N/m No. 3986/2019 in Suit No.
8961/1993 (H.C.Suit No. 1922/1993), N/m No. 3987/2019 in Suit No.
9008/1993 (H.C.Suit No. 2076/1993), N/m No. 3984/2019 in Suit No.
9279/1993 (H.C.Suit No. 3067/1993), N/m No. 3985/2019 in Suit No.
9280/1993 (H.C.Suit No. 3068/1993).
2. These motions are preferred by defendant to set aside the
order of 'No evidence of defendant' dated 24/06/2019.
-- 3 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 4 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
3. Perused endorsement of plaintiff, it is strongly opposed.
4. Ld. advocate Rafique for plaintiff submits that his oral
arguments be consider as written submission that plaintiff has strongly
objected.
5. Ld. advocate K.C.Pandey for defendant submits that
defendant is going to examine only one witness namely Haresh Shah.
Defendant has filed evidence affidavit of Haresh Shah alongwith
compilation of documents through then lawyer Mr. advocate Mayur
Narendra & Company in June 2009 before then Commissioner Mr.
Advocate Tarachand Jain. It is requested that defendant be allowed to
continue with evidence filed by defendant.
6. Ld. advocate Rafique for plaintiff submits that plaintiff has
purchased a suit property before 20 years. Defendant is a builder who
can afford litigation. Plaintiff has preferred the suit before 25 years.
Plaintiff is 80 years old. According to advocate Rafique for plaintiff,
there is no affidavit tendered by defendant nor any compilation was
filed by the defendant.
7. Advocate Rafique for plaintiff continued that in January
2019 one photocopy of compilation was handed over by the defendant.
It is unaffirmed photocopy, there are no original documents before the
Court. Therefore how plaintiff can compel to disbelieve the document
when the document in itself is not in existence. It is claimed to reject
-- 4 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 5 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
the motion. In the alternative, it is claimed for cost of Rs.25,000/ in
total in all 5 suits.
8. It is replied by ld. advocate K.C. Pandey that he did not
have any endorsement mentioning acknowledgement in respect of
evidence affidavit of Haresh Shah and compilation of documents
tendered by defendant. Ld. advocate Pandey submits that advocate
Mayur had supplied one set of compilation to advocate Bhargavan on
16/06/2009 and he holds the acknowledgement alongwith seal of
Bhargavan & Associates. However, ld. advocate K.C.Pandey admitted
that original documents were not given to advocate Bhargavan &
Associates.
9. In view of above discussion, following points are necessary
to note i.e.
A) On perusal of entire record of the Court, there is no
evidence affidavit of witness Haresh Shah,
B) There is no endorsement in roznama about documents/
compilation of documents tendered by defendant,
C) There is no endorsement of defendant that evidence
affidavit of Mr. Haresh Shah and compilation of documents
was tendered with then Court Commissioner Mr. advocate
Tarachand Jain.
10. Considering aforesaid discussion, it is clear from the record
that neither evidence affidavit of Haresh Shah was tendered nor it was
-- 5 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 6 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
annexed alongwith compilation of documents. In such a situation, ld.
advocate K.C.Pandey submits that he may file fresh evidence affidavit of
witness Mr. Haresh Shah. In such a situation, it is upto defendant to
lead secondary evidence or to prove the documents according to his
record. Defendant may be at liberty to produce the original if he can
trace out.
11. Considering suit is 25 years old, chiefexamination and
crossexamination at length was recorded before the Court
Commissioner Advocate Tarachand Jain appointed by the Original Side
of the Hon'ble High Court, I find it appropriate to decide the matter on
merit. The order dated 24/06/2019 is set aside subject to cost of
Rs.800/ be paid to plaintiff in each suit. Hence the order :
ORDER
1. The order dated 24/06/2019 is set aside subject to cost of
Rs.800/ in each suit (800 X 5 = 4,000) be paid to the
plaintiff.
2. Three months time is given to the defendant to trace out
the documents.
3. Defendant to file fresh evidence affidavit of witness Haresh
Shah, if necessary.
4. Defendant is at liberty to examine additional witness, if
any.
5. In default of appropriate steps to file affidavit of witness of
defendant, evidence of defendant will be closed.
6. At the request of advocate Pandey for defendant, issue
instruction to the Registrar of the City Civil Court to search
-- 6 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 7 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
copy of affidavit of compilation produced by Haresh Shah,
as claimed to have produced by him in High Court, if any,
(Original Civil High Court Suit No. 3067/1993 i.e. City
Civil Court Suit No. 9279/1993) within two months.
7. N/m No. 3988/2019 in Suit No. 8842/1993 (H.C.Suit
No.1440/1993), N/m No. 3986/2019 in Suit No.
8961/1993 (H.C.Suit No.1922/1993), N/m No. 3987/2019
in Suit No. 9008/1993 (H.C.Suit No.2076/1993), N/m No.
3984/2019 in Suit No. 9279/1993 (H.C.Suit
No.3067/1993), N/m No. 3985/2019 in Suit No.
9280/1993 (H.C.Suit No.3068/1993) are disposed off
accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 07/11/2019. Mumbai.
1. Dictated on : 07/11/2019.
2. Transcribed on : 14/11/2019.
3. Signed on : 15/11/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 7 of 8 --
N/m No. 3988/2019 in Suit No. 8842/1993, 8 Combine Order.
N/m No. 3986/2019 in Suit No. 8961/1993,
N/m No. 3987/2019 in Suit No. 9008/1993,
N/m No. 3984/2019 in Suit No. 9279/1993,
N/m No. 3985/2019 in Suit No. 9280/1993.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/11/2019. 11.34 a.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 07/11/2019.
Judgment/Order signed by P.O. on 15/11/2019.
Judgment/Order uploaded on 18/11/2019.
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