Maryknoll Corporation And Anr vs Yolanda Ferrow And 19 Ors
2023 Latest Caselaw 23 Bom

                                                                  28-nms-1231-2010.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION

                       NOTICE OF MOTION NO.1231 OF 2010
                                      IN
                             SUIT NO.1152 OF 2010

Maryknoll Corporation and Another                           ...Plaintiffs
     vs.
Yolanda Ferrow and Others                                   ...Defendants

Mr. Ganesh Ambekar i/b. Thakore Jariwala & Associates, for the
Plaintiffs.
Ms. Gayatri Sharma i/b. S.K. Srivastava & Co., for Defendant No. 21.
Mr. Aniesh Jadhav a/w. Mr. Rushikesh Kekane, Mr. P.J. Thorat, for
Defendant No. 3.

                             CORAM :     N. J. JAMADAR, J.

                             DATE :      JANUARY 02, 2023

P.C.:

1. Heard the learned counsel for the parties.

2. This Court granted ad-interim relief by an order dated 15 th

July, 2010. Relevant part of the order dated 15 th July, 2010 reads as

under:-

2] After having considered the entire record, I am inclined to observe that the Plaintiffs have made out a prima-facie case for grant of ad-interim relief in terms of prayer clause (a) except the bracketed portion. Same is the position so far as prayer clause (b). It is required to be mentioned that the Plaintiffs are not in a position to secure the addresses of the Defendants because the documents creating rights in favour of Defendant Nos.4 to 20 have been made behind the back of the Plaintiffs and on the basis of actions which according to the Plaintiffs are fraudulent.

3] Hence, following order is passed at the ad-interim stage:-

(i) Issue ad-interim injunction in terms of prayer

Vishal Parekar, P.A. ...1 28-nms-1231-2010.doc

clause (a) except the bracketed portion and prayer clause (b).

3. Having regard to the time lag of more than 12 years and the

nature of the order passed by this Court, it would be expedient to

direct that the ad-interim order dated 15 th July, 2010, extracted

above, operates as an interim order till the disposal of the suit.

4. Hence, the ad-interim order shall operate as an interim order

and, accordingly, Notice of Motion No. 1231 of 2010 is made

absolute.

5. In the event, the plaintiffs consider it necessary to seek

further interim relief against any of the defendants, the plaintiffs

are at liberty to do so.

6. In the intervening period, it seems that the defendant No. 3

raised an issue of bar of limitation and, thereafter, by an order

dated 12th June, 2015 this Court directed that an issue of limitation

be framed and tried as a preliminary issue.

7. The learned counsel for the plaintiffs submits that the

plaintiffs led evidence in terms of the aforesaid order dated 12 th

June, 2015.

8. The defendant Nos. 2 and 3 have filed the written statement.

The suit is directed to be proceeded ex-parte against defendant Nos.

1 and 4 to 20.

Vishal Parekar, P.A. ...2 28-nms-1231-2010.doc

9. In view of the judgment of the Supreme Court in the case of

Nusli Neville Wadia vs Ivory Properties and Others 1 the issue of

limitation, need not be tried as a preliminary issue as it usually

presents a mixed question of fact and law.

10. Since the pleadings are complete, the parties shall circulate

and exchange the draft issues.

11. List for settlement of issues on 6th February, 2023.

                                            (N. J. JAMADAR, J.)




1    (2020) 6 Supreme Court Cases 557.

Vishal Parekar, P.A.                                                            ...3