Naman Madhav Patel vs Jetu Jaques Taru Lalwania And 4 Ors
2023 Latest Caselaw 3516 Bom

2023:BHC-OS:2641-DB                                   1/2                            14-app-28-21.doc




                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION
                                       APPEAL NO.28 OF 2021
                                                IN
                                 CHAMBER SUMMONS NO.731 OF 2005
                                                IN
                               EXECUTION APPLICATION NO.192 OF 2002
                                                IN
                                   SUMMARY SUIT NO.491 OF 1999

           Naman Mahadev Patel                              ....Appellant
                 V/s.
           Jetu Jaques Taru Lalwania & Ors                  ...Respondents

                                                WITH
                               INTERIM APPLICATION (L) NO.32778 OF 2022
                                                 IN
                                        APPEAL NO.28 OF 2021

                                               ----

Mr. Sunip Sen, Senior Advocate a/w Mr. Amit Shroff, Ms Ashna Shah, Ms Jyoti Ghag and Mr. Vishal Sapre i/b Dua Associates for Appellant. Mr. Yatin Shah for Respondent No.1.

----

CORAM : K.R. SHRIRAM & RAJESH S. PATIL JJ DATED : 10th APRIL 2023

P.C. :

1 Appellant is impugning an order dated 22 nd January 2020 passed by a

Learned Single Judge of this court.

2 One of the issue that was to be decided by the Learned Single Judge

in the impugned order was, whether the gift of the share certificate by Mr.

B. N. Patel to Mr. Naman Patel is vitiated because of fraud ? The Learned

Single Judge answered the issue by observing that it was incumbent upon

appellant to prove the document of gift deed dated 5 th August 1993 and

Meera Jadhav

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neither original document is placed on record, nor the same has been

proved in any manner known to law. The court went on to answer that

since the document itself has not been proved, the question of answering

whether it is vitiated by fraud, does not arise. That is how we read

paragraph 8 of the impugned order.

3 Mr. Sen very fairly states that appellant did not bring to the notice of

the Learned Single Judge the order dated 20 th July 2005 passed in Chamber

Summons No.731 of 2005 because according to Mr. Sen, the issue as framed

presupposed that there was a gift deed in place. Mr. Sen states that in the

order of 20th July 2005, the Judgment Creditor has admitted that there is a

gift deed but according to Judgment Creditor it is not a valid gift deed.

4 In the impugned order, this order of 20 th July 2005 has not been

brought to the notice of the court, for the court to consider whether even in

such circumstances, the gift deed had to be proved independently.

5 In the circumstances, Mr. Sen seeks leave of the court to withdraw the

appeal with liberty to file review petition.

6 Keeping open all rights and contentions of the parties, appeal

dismissed as withdrawn with liberty as prayed for.

7 Consequently, interim application also stands disposed.

(RAJESH S PATIL, J.)                                  (K.R. SHRIRAM, J.)




Meera Jadhav