Bombay High Court
Master Varun Chhabria (Minor) ... vs M/S. Supreme Indosaigon ... on 8 December, 2014
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10272 OF 2014
1 Deepak Chhabria, age about 63 year )
An adult Indian Inhabitant having address at )
Office No.102/103, Sai Prasad Commercial )
Complet, 1st Floor, 4th Road, Khar (West) )
Mumbai 400 052 )
2 Varsha Chhabria, Age about 61 year )
An adult Indian Inhabitant having address at )
Office No.102/103, Sai Prasad Commercial )
Complex, 1st Floor, 4th Road, Khar (West)
ig )
Mumbai 400 052 ) ..Petitioners
Vs.
1 M/s. Supreme Indosaigon Associates )
a partnership firm, having registered office )
at 114, Maker Chambers VI, 11th floor, )
220, Nariman Point, Mumbai 400 021 )
2 M/s. Aditya Enterprise )
Partnership Firm having its office at )
B/1, 306, 2nd floor, Laram Centre, M.A.Road, )
Andheri (West) Mumbai 400 058 ) ..Respondents
WITH
WRIT PETITION NO.9991 OF 2014
Nedumparampil Maideen Bavarawter Naushad )
age about 46 year through his constituted )
attorney Mr. Deepak Chhabria )
having address at Office No.102/103, )
st
Sai Prasad Commercial Complex, 1 Floor, )
th
4 Road, Khar (West) Mumbai 400 052 ) ..Petitioner
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Vs.
1 M/s. Supreme Indosaigon Associates )
a partnership firm, having registered office )
at 114, Maker Chambers VI, 11th floor, )
220, Nariman Point, Mumbai 400 021 )
2 M/s. Aditya Enterprise )
Partnership Firm having its office at )
B/1, 306, 2nd floor, Laram Centre, M.A.Road, )
Andheri (West) Mumbai 400 058 ) ..Respondents
WITH
WRIT PETITION NO.9992 OF 2014
Master Varun Chhabria age about 17 year
through his father and natural guardian
)
)
Mr. Deepak Chhabria )
having address at Office No.102/103, )
Sai Prasad Commercial Complex, 1st Floor, )
4th Road, Khar (West) Mumbai 400 052 ) ..Petitioner
Vs.
1 M/s. Supreme Indosaigon Associates )
a partnership firm, having registered office )
at 114, Maker Chambers VI, 11th floor, )
220, Nariman Point, Mumbai 400 021 )
2 M/s. Aditya Enterprise )
Partnership Firm having its office at )
B/1, 306, 2nd floor, Laram Centre, M.A.Road, )
Andheri (West) Mumbai 400 058 ) ..Respondents
Mr. Y. S. Jahagirdar Senior Advocate, with Mr. Niranjan Lapashiya and Ms
Nikita Gada i/b M/s. Niranjan & Co. for the Petitioners
Mr. P. K. Dhakephalkar, Senior Advocate, with Mr. Ashwin Ankad and Mr.
Rakesh Pandey i/b M/s. Ashwin Ankhad & Associates for the Respondent
No.1
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CORAM : R. M. SAVANT, J.
DATE : 8th DECEMBER, 2014
ORAL JUDGMENT
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The above Writ Petitions filed under Article 227 of the Constitution
of India involve a common challenge i.e. the challenge to the order dated 26-9-
2014 passed by the Learned Judge of the City Civil Court by which order, the
Chamber Summonses filed by the Petitioners herein for directing the Defendant
No.1 to file the Written Statements affirmed on 9-1-2007 and the Written
Statements dated 26-3-2014 filed in each of the Suits in question, be rejected
and returned to the Defendant No.1 is taken exception to by way of the above
Petitions.
3 Shorn of unnecessary details a few facts can be stated thus:
The Petitioners herein are the original Plaintiffs who have filed the
Suits in question being Suit Nos.515 of 2006, 517 of 2006 and 553 of 2006,
against the Defendants i.e. the Respondents herein for compliance of the
obligations of the Respondents under the Maharashtra Ownership of Flats Act,
1963 (for short MOFA). In the said Suits, an interim order is operating against
the Defendant No.1 whereby the Defendant No.1 has been injuncted from
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dealing with the suit property in question. In view of the fact that the
Respondents/Defendant No.1 had not filed their Written Statements, a No WS
order came to be passed against the Defendant No.1 on 9-1-2007. Upon this,
the Defendant No.1 decided to file applications by way of Notices of Motion in
the three Suits for setting aside the No WS order dated 9-1-2007 and for the
Written Statements being taken on record. In the affidavit in support of the
Notices of Motion, the ground made out was that though the Written
Statements of the Defendant No.1 were ready and affirmed on 9-1-2007,
however for the reasons beyond its control it were unable to file the same in
the Court. The Trial Court i.e. the Learned Judge of the City Civil Court
considered the said Notices of Motion and by order dated 15-1-2011 rejected
the same. It seems that the Defendant No.1 thereafter let the matter rest for
about three years and challenged the said order dated 15-1-2011 by way of
Writ Petitions in this Court, being Writ Petition Nos.2561 of 2014, 2605 of
2014 and 2551 of 2014.
4 In the said Writ Petitions, apart from the fact that the Written
Statements were affirmed on 9-1-2007, it was also pleaded that in view of the
accident which the Joshi family had met with in London that steps could not be
taken to file the said Notices of Motion and thereby get the No WS order set
aside and in turn file the Written Statements. This Court by order dated 12-3-
2014 set aside the order dated 15-1-2011 passed by the Learned Judge of the
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City Civil Court rejecting the Notices of Motion. This Court whilst setting aside
the said order adverted to the fact that though the accident met by the Joshi
family was not a ground on which the Notices of Motion filed for setting aside
No WS order were founded upon, however the fact that the said Joshi Family
met with an accident could not be lost sight of. This Court also referred to the
case of the Petitioner therein i.e. the Defendant No.1 in the Suit that the
Written Statements were filed and affirmed and ready for filing on 9-1-2007
but were for some inexplicable reasons not filed, as indicated above this Court
by order dated 12-3-2014, allowed the Notices of Motion and thereby set aside
the No WS order and permitted the Defendant No.1 to file its Written
Statement by imposing costs of Rs.10,000/- in each of the Suits. In the
operative part of the order dated 12-3-2014 this Court permitted the
Defendant No.1 to file its Written Statement on or before 27-3-2014. This is in
so far as the setting aside of the No WS order and the filing of the Written
Statements by the Defendants is concerned.
5 It seems that thereafter the Written Statements were sworn on 26-
3-2014 by the Defendant No.1. It is on the basis of the said Written Statements
i.e. the pleadings on record that the Trial Court framed issues in the said three
suits on 10-6-2014. The Plaintiffs were also paid costs of Rs.10,000/- which
was directed by the said order dated 12-3-2014 which the Plaintiffs accepted. It
seems that the Plaintiffs thereafter sought time on two dates for filing their
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affidavit in examination-in-chief in each of the three Suits and after seeking
time on 8-8-2014 filed the instant three Chamber Summonses for the relief
that the Written Statements which have been affirmed on 26-3-2014 should be
taken off from record and the Defendant No.1 should be directed to file the
Written Statements dated 9-1-2007. The said 3 Chamber Summonses were
opposed to on behalf of the Defendant No.1. The Trial Court considered the
said applications i.e. the Chamber Summonses and by the impugned order
dated 26-9-2014 has rejected the said Chamber Summonses. The gist of the
reasoning of the Trial Court is that this Court had granted time till 27-3-2014
to file the Written Statements and the same would not imply that the Written
Statements dated 9-1-2007 which the Defendant No.1 had purportedly
affirmed were required to be filed. The Trial Court further held that it is not a
case where the Written Statements dated 9-1-2007 were tendered and the
same were not taken on record and thereafter the applications for taking them
on record were filed. The Trial Court was of the view that the applications were
for setting aside the No WS order and for taking the Written Statements on
record and therefore the Defendant No.1 was entitled to file the Written
Statements but that was to be done before 27-3-2014. As indicated above, it is
the said order dated 26-9-2014 passed by the Trial Court which is taken
exception to by way of the above Petitions.
6 Heard the Learned Senior Counsel for the parties.
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7 The learned Senior Counsel Shri Y. S. Jahagirdar appearing on
behalf of the Petitioners would contend that the Notices of Motion were
allowed in the earlier round having regard to the fact that the Written
Statements on behalf of the Respondents were affirmed and ready on 9-1-2007
but were not filed. The Learned Senior Counsel would contend that the said
ground is virtually replete in the affidavit in support of the Notices of Motion,
the Writ Petitions filed by the Defendant No.1 in the earlier round and
therefore the Defendant No.1 was not entitled to file the Written Statements
different than the ones affirmed on 9-1-2007. The Learned Senior Counsel
would contend that the Written Statements affirmed on 9-1-2007 were
different in their content than the Written Statements which have been
affirmed on 26-3-2014 and the same therefore acts to the prejudice of the
Plaintiffs as certain admissions are now sought to be taken away by the Written
Statements sworn on 26-3-2014. Hence it is the submission of the learned
Senior Counsel for the Petitioners that the Written Statements affirmed on
26-3-2014 should be rejected and the Defendant No.1 should be directed to file
the Written Statements affirmed on 9-1-2007.
8 Per contra the Learned Senior Counsel Shri P. K. Dhakephalkar
appearing on behalf of the Respondent No.1 would support the impugned
order. The Learned Senior Counsel would contend that the ground of the
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Written Statements being affirmed on 9-1-2007 is one of the grounds inter alia
on the basis of which the setting aside of the No WS order and for the
Defendant No.1 being permitted to file their Written Statements was sought.
The Learned Senior Counsel would contend that as rightly observed by the
Trial Court the Written Statements dated 9-1-2007 were never tendered in the
Trial Court and therefore since this Court had granted time till 27-3-2014, the
Defendant No.1 was well within its right to file the Written Statements which
were sworn on 26-3-2014. The Learned Counsel would contend that in so far
as the Defendant No.1 is concerned, it is entitled to take contradictory pleas
and the averments in the Written Statements have therefore to be construed in
a different manner than the averments in a plaint.
9 Having heard the Learned Senior Counsel for the parties I have
considered the rival contentions. The question that is posed in the above
Petitions is whether the Defendant No.1 is entitled to file different Written
Statements than ones that were affirmed on 9-1-2007 or that the Defendant
No.1 has to only file the Written Statements affirmed on 9-1-2007, in the said
three Suits. No doubt in the affidavit in support of the Notices of Motion that
were filed for setting aside the No WS order, the foundation was that the
Written Statements were duly affirmed on 9-1-2007 but for some inexplicable
reasons remained to be filed. However, in the earlier round what is required to
be noted that apart from the said fact, the Learned Counsel who had appeared
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for the Defendant No.1 in the earlier round had contended that the Joshi
family had met with a serious accident in London on account of which steps
could not be taken for filing of the Notices of Motion and thereby seek setting
aside of the No WS order whereby the Defendant No.1 would be entitled to file
its Written Statements. The fact that the Written Statements were affirmed on
9-1-2007 is a fact which demonstrates that the Defendant No.1 was diligent
and had kept the Written Statements ready but could not file the same.
Obviously the said fact being pressed into service by the Defendant No.1, this
Court had given due weightage to the same. This Court whilst allowing the
Notices of Motion in the earlier round had therefore adverted to the aforesaid
facts, however, whilst setting aside the order, this Court had granted time up
to 27-3-2014 to the Defendant No.1 to file its Written Statements. It is also
required to be borne in mind that the Written Statements affirmed on 9-1-2007
were not placed on record in any manner at the time when the Notices of
Motion were considered or even thereafter. An order setting aside the No WS
order and permitting the Defendant No.1 to file its Written Statements cannot
be construed in the instant case to mean that the Written Statements which
were permitted to file were only the ones dated 9-1-2007. In my view, giving
such an interpretation to the order dated 12-3-2014 passed in the earlier round
would be like putting restrictions on the Defendant No.1 as regards its defence,
moreso when it was entitled to file its Written Statements within the outer
limit of 27-3-2014,either the Written Statements dated 9-1-2007 if it so
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chooses or any other Written Statements. The contention urged on behalf of
the Petitioners herein that in view of the Written Statements which have been
affirmed on 26-3-2014 certain admissions which were purportedly appearing
in the Written Statements affirmed on 9-1-2007 are taken away, cannot be a
consideration for directing the Defendant No.1 that the Written Statements
dated 9-1-2007 can only be filed. In my view, the Trial Court has approached
the matter from the correct perspective by observing that in terms of the order
dated 12-3-2014 it is not as if the Written Statements dated 9-1- 2007 were
only to be filed.
10 The matter has also to be viewed from another angel. As indicated
above, the Defendant No.1 has remitted costs of Rs.10,000/- to the Plaintiffs in
each of the said Suits in terms of the said order dated 12-3-2014. The Plaintiffs
have accordingly accepted the said costs. The Written Statements were
thereafter tendered and it is on the basis of the Written Statements which were
filed, that issues were framed, having regard to the pleadings on record. The
Plaintiffs do not seem to have objected to the Written Statements which were
sworn on 26-3-2014 being filed, as issues were also framed thereafter, in fact
the Plaintiffs had sought adjournment on two occasions when it was for them
to file their affidavit of evidence and it is on the second occasion that the
instant Chamber Summonses came to be filed. In my view therefore, the
instant Chamber Summonses are an after thought and have been possibly filed
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in view of the fact that the Defendant No.1 had sought amendment in its
Written Statement in the other Suit being No.516 of 2006 which is identical to
the Suits involved in the above Petitions. Hence on the said ground also the
impugned order passed by the Trial Court rejecting the Chamber Summonses
can be sustained. In that view of the matter, no case for interference in the
Writ Jurisdiction of this Court is made out. The Writ Petitions are accordingly
dismissed. Rule discharged, with parties to bear their respective costs.
At this stage, the Learned Counsel for the Petitioners prays for
stay of the instant order. In view of the fact that this Court has directed the
Suits to be disposed of by 31st December 2014, the said prayer is rejected.
[R.M.SAVANT, J]
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