Bombay High Court
Dileep Nevatia And Anr vs Harish Loyalka And 4 Ors on 12 September, 2023
Bench: Shri Arif Doctor
2023:BHC-OS:9813-DB
1 (901 & 902) APP-344.19&345.19-aw-IAs.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.344 OF 2019
IN
NOTICE OF MOTION NO.1228 OF 2016
IN
SUIT NO.3598 OF 1996
WITH
INTERIM APPLICATION NO.636 OF 2020
IN
APPEAL NO.344 OF 2019
Dileep Nevatia and anr. : Appellants/Applicants
(Org.Defendant Nos.1 & 2)
Vs.
Harish Loyalka and ors. : Respondents
(R1 & R2 Org. Plaintiffs &
R-3 to R-5 Org. Defendant
Nos.3, 4 & 5)
WITH
APPEAL NO.345 OF 2019
IN
NOTICE OF MOTION NO.1696 OF 2016
IN
COUNTER CLAIM NO. 10 OF 2016
IN
SUIT NO.3598 OF 1996
WITH
INTERIM APPLICATION NO.638 OF 2020
IN
APPEAL NO.345 OF 2019
Dileep Nevatia and anr. : Appellants/Applicants
(Org.Plaintiff Nos.1& 2
to the Counter Claim)
Vs.
LGC 1 of 20
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1(a) Harish Loyalka and ors. : Respondents
(Org.Defendants
to the Counter Claim)
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Mr. Dileep Nevatia - Appellant/Applicant No.1 present in person in
both the Appeals.
Mr. Gaurav Joshi, Senior Advocate a/w Ms. Neeta Jain with Mr.
Avinash Joshi and Mr. Shivam Chitlangia i/by M/s. Mulla & Mulla &
Craigie Blunt & Caroe for Respondent Nos.1(a) and 1(b) in Appeal
No.345 of 2019 and for Respondent Nos.1 and 2 in Appeal No.344
of 2019.
Ms. Urvi Joshi a/w Ms. Preeti Shah, Mr. Santosh Jadahv for
Respondent No.3 in Appeal No.345 of 2019 and for Respondent
No.4 in Appeal No.344 of 2019.
Mr. Rohan Sawant with Ms. Meghna Vijan for Respondent No.4 in
Appeal No.345 of 2019 and for Respondent No.5 in Appeal No.344
of 2019 i/by Bali Associates.
-------
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
Reserved on : 22nd August 2023
Pronounced on : 12th September 2023
P.C. : (Per ARIF S. DOCTOR, J.)
The present Appeal impugns a common order dated
26th February 2019 by which the Learned Single Judge has
dismissed two Notices of Motion, i.e., Notice of Motion No. 1696 of
2016 ("the First Motion") and Notice of Motion No. 1228 of 2016
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("the Second Motion") filed by the Appellants. The Appellants are
Defendant No. 1 and 2 in the captioned Suit ("the said Suit") and
the Plaintiffs in the captioned Counter Claim ("the said Counter
Claim").
2. The said Suit was filed by one Snehlata Nevatia
("Original Plaintiff") inter alia seeking a declaration that a Family
Agreement dated 22nd September 1990 ("the Family Agreement")
entered into between the Original Plaintiff, her husband and
essentially her children in the said Suit is void and not binding
upon the Original Plaintiff. The Appellants have filed a Counter
Claim inter alia seeking specific performance of the Family
Agreement as also specific performance of what the Appellants
have referred to as a Writing of Family Arrangement which infact
is a declaration by original Plaintiff dated 27th November 1992
("the said Declaration") executed by the Original Plaintiff.
3. The Original Plaintiff in the course of her cross
examination in answer to a question put to her on the said
Declaration, has answered as follows, viz.
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"9. (Shown the writing dated 27th November 1992).
This writing is signed by me.
[P.C. :
By consent, the writing dated 27th November
1992 be marked as Exhibit D-20.]"
It is basis the above that the Appellants contend that the original
Plaintiff has admitted the said Declaration and basis this they have
taken out the said Notices of Motion. In the First Notice of Motion
the Appellants have inter alia sought a decree on admission in
terms of prayer clauses (c), (d), (e), (f), (g), (h), (i), (l), (m) and
(n) of the Counter Claim which read thus, viz.
(c) that this Hon'ble Court be pleased to declare
that the Plaintiff in the suit is not entitled to
dispossess these Defendants from the said
property "Shashi Deep" or any part thereof;
(d) that this Hon'ble Court be pleased to declare
that the said Writing of Family Arrangement
dated 27/11/1992 is valid, subsisting and
binding on the parties including the Plaintiff in
the suit and is irrevocable and is specifically
enforceable even independently of the Family
Arrangement/Agreement dated 22nd September
1990;
(e) that this Hon'ble Court be pleased to order and
decree the Plaintiff to specifically perform
unperformed part of the said Writing of Family
Arrangement dated 27/11/1992 by executing a
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Will in respect of the said property known as
"Shashi Deep" as undertaken under cl.3 of the
said Writing of Family Arrangement dated
27/11/1992 and direct nullification and/or
revocation of all other documents executed by
the Plaintiff in the suit, if any, which are contrary
to and/or inconsistent with the obligations of the
Plaintiff in the suit under cl.3 of the said Writing
of Family Arrangement dated 27/11/1992;
(f) that this Hon'ble Court be pleased to declare
that the agreement to bequeath the said
property "Shashi Deep" in favour of the
Defendant No.1 was executed by the Plaintiff in
the suit for lawful consideration as a part of the
Family Arrangement/Agreement and the Plaintiff
in the suit having taken full advantage and
benefit under cl.2 of the said Writing of Family
Arrangement dated 27/11/1992 as enforceable
in law and the action of the Plaintiff taken by the
Plaintiff in deviation thereof, if any, is null and
void and the specific covenants contained in the
family arrangements herein is specifically
enforceable.
(g) that this Hon'ble Court be pleased to declare the
Defendant No.1 is and will be the only successor
and sole owner in respect of the property known
as "Shashi Deep" on the death of the Plaintiff in
the suit and for the purpose of effectuating the
Family Arrangement/Agreement dated 22nd
September 1990 all necessary directions be
issued and orders be passed;
(h) that this Hon'ble Court be pleased to declare
that the Defendant No.1 and the members of his
family are entitled to the sole and exclusive
possession, occupation and use of the entire
second floor of the said bungalow "Shashi
Deep";
LGC 5 of 20
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(i) that this Hon'ble Court be pleased to declare
that the Defendant No.1 and the members of his
family alone are entitled to possess, occupy and
use the ground and first floors of the bungalow
"Shashi Deep" along with the Plaintiff in the suit
during her lifetime and to the exclusion of all
others;
(l) that this Hon'ble Court be pleased to restrain the
Plaintiff in the suit by permanent injunction from
interfering with possession, occupation and user
of the said bungalow by these Defendants and
members of his family and from their right of
succession in terms of cl.10 of the Family
Arrangement/Agreement dated 22nd September
1990 and cl.3 of the said Writing of Family
Arrangement dated 27/11/1992;
(m) that this Hon'ble Court be pleased to restrain the
Plaintiff in the suit from taking any steps or
executing any document or writing, in favour of
anyone whosoever, which is contrary to and
inconsistent with the contents of the Family
Arrangement/Agreement dated 22nd September
1990 and the said Writing of Family
Arrangement dated 27/11/1992;
(n) that this Hon'ble Court be pleased to restrain the
Defendant No.5 in the suit from entering upon
the said property "Shashi Deep" and from
causing any interference whatsoever in respect
of the right of these Defendants to use the said
bungalow and all rights of possession,
occupation, user and succession vested in the
Defendant No.1 in any manner whatsoever;
Consequent to the above being granted, the Appellants have in
the Second Notice of Motion, inter alia sought rejection/dismissal
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of prayer clauses (c) and (d) of the Suit. However, both the said
Notices of Motion came to be dismissed by the Impugned Order
dated 26th February 2019 and it is thus that the present Appeals
have been filed.
4. At the outset Mr. Nevatia - Appellant No. 1 appearing in
person, submitted that the Learned Single Judge had completely
overlooked the above admission and had proceeded solely on the
basis of what was recorded in the order dated 29 th June 1998
namely, viz.
"8. ......... At this stage, as the things have come on
record, the Plaintiff has not backed from her
undertaking given in document No.1 to the
effect that Defendant No.1 and his family will be
successor after her life time."
He submitted that while the above position continued to subsist,
the said observation was not the sole basis on which the
Appellants had sought a decree on admission. He submitted that
it was also on the basis of the answer given by the Original
Plaintiff in cross examination as reproduced above which fact had
been completely ignored by the Learned Single Judge.
LGC 7 of 20
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5. He invited our attention to the prayers made in the
captioned Suit and pointed out therefrom that the Original Plaintiff
had not challenged the said Declaration. He then invited our
attention to the said Declaration and pointed out that the same
inter-alia provided as follows, viz.
"3. I also confirm that Dileep and his family will be
the successors of myself after my lifetime as far
as the entire property Shashi Deep is
concerned."
Mr. Nevatia, in light of the above read with the answer given by
the original Plaintiff in cross examination, submitted that the
Original Plaintiff had (a) not challenged the said Declaration and
(b) in cross examination unequivocally accepted the said
Declaration. He submitted that this therefore was an admission on
the part of the Original Plaintiff as to the First Appellant's
entitlement to Shashi Deep ("the said Bungalow"). Basis this, he
submitted that the Appellants were entitled to a decree on
admission under the provisions of Order XII Rule 6 of the CPC as
more particularly prayed for in the First Notice of Motion and
consequently prayer clause (a) of the Second Notice of Motion.
LGC 8 of 20
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6. Mr. Nevatia then placed reliance upon the judgment of
the Hon'ble Supreme Court in the case of Karam Kapahi and Ors
vs. M/s. Lal Chand Public Charitable Trust and Anr 1 to submit
that an admission under Order XII Rule 6 of the Code of Civil
Procedure, 1908 ("the CPC") included an admission by " pleading
or otherwise in writing". From the said judgement he pointed out
that an admission under Order XII Rule 6 of the CPC was very
wide in its scope and that a party relying upon such admission of
the other party made in pleading or otherwise, can press for
judgment, as a matter of legal right. Basis this, he submitted that
the evidence of the Original Plaintiff read with the said Declaration
constituted an admission under Order XII Rule 6 of the CPC. He
therefore submitted that basis this the Appellants were entitled to
a decree on admission as prayed for in the First Notice of Motion.
7. Mr. Nevatia then pointed out that the Original Plaintiff
had specifically stated that she was a builder by profession and
was aware of the procedure for re-development etc. Basis this he
1 AIR 2010 SC 2077
LGC 9 of 20
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submitted that the Original Plaintiff was therefore presumed to be
someone who was aware of the nature and effect of a document
when executing the same and was not a lay person. He submitted
that this coupled with the fact that in cross-examination the
original Plaintiff had not in any manner disputed and/or denied
either the execution and/or the contents of the said Declaration
nor had challenged the same in the said Suit made clear and
unambiguous that the original Plaintiff had unequivocally admitted
that the first Appellant was entitled to the said Bungalow, i.e.,
Shashi Deep. Mr. Nevatia pointed out that this fact had been
wholly overlooked by the Learned Single Judge in the Impugned
Order. Basis this, he submitted that both the Notices of Motion
deserved to be allowed.
8. Per contra, Mr. Joshi, the Learned Senior Counsel
appearing on behalf of Respondent No. 1(a) and 1(b) in Appeal
No. 345 of 2019 submitted that the Original Plaintiff had passed
away on 23rd June 2011 and had by her last will and testament
dated 17th June 2009 bequeathed the said bungalow i.e., Shashi
LGC 10 of 20
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Deep to Respondent No.5 namely Shishir Nevatia. Mr. Joshi
submitted that the very fact that the original Plaintiff had filed a
Suit in the year 1996 coupled with the fact that she had left a will
bequeathing the said bungalow i.e., Shashi Deep to Respondent
No. 5 itself made explicit that the Original Plaintiff inter alia
disputed the First Appellant's entitlement to the said bungalow. He
submitted that the reliance placed upon the cross-examination of
the Original Plaintiff was in isolation and out of context and thus
would not qualify even remotely as being an admission under the
provisions of Order XII Rule 6 of the CPC much less entitle the
Appellants to a decree on admission.
9. He then submitted that an admission under Order XII
Rule 6 of the CPC had to be one which was unambiguous, clear
and unconditional and the law would not permit an admission by
inference as the same was a matter of fact. He submitted that an
admission of fact had to be clear from the record itself and cannot
be left to the interpretative determination by the Court unless
there was a complete trial, and the finding of an admission was on
LGC 11 of 20
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the basis of cogent and clear evidence on record. In support of his
contention, he placed reliance upon a judgment of a Division
Bench of this Court in the case of Shantez and Anr. vs.
Applause Bhansali Films Ltd. Co. Mumbai and Ors 2. Basis
this, he submitted that in the facts of the present case, there was
infact no admission, much less a clear and cogent admission. He
submitted that what the Appellants sought to rely upon as an
admission, was infact something which had to be inferred. Basis
this, he submitted that the question of a decree on admission
being granted thereon under the provisions of Order XII Rule 6 of
the CPC did not arise since the same was not clear and
unambiguous as was required under Order XII Rule 6 of the CPC.
10. Mr. Joshi then invited our attention to the Suit and
pointed out that the original Plaintiff was the sole lessee in respect
of the said Bungalow. He pointed out that the original Plaintiff had
sought cancellation of the Family Agreement since Appellant No.1
had not performed his obligations thereunder. He then invited our
attention to the prayers made in the Counter Claim and pointed
2 2009 SCC Online Bom. 405
LGC 12 of 20
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out that the Appellants had primarily sought specific performance
of the Family Agreement and would therefore have to first
establish that Appellant No. 1 had infact performed his obligations
under the Family Agreement. He submitted that this would have to
be established from inter-alia the evidence of Appellant No. 1. Mr.
Joshi submitted that both the Notices of Motion were taken out at
this belated stage only because Appellant No. 1 had in his
evidence failed to establish that he had discharged/performed his
obligations under the Family Agreement. In support of his
contention Mr. Joshi invited our attention to the Family Agreement
and pointed out that Appellant No. 1 was required to do the
following viz.
"3. Dileep Nevatia will sell his shares in Elegant
Industries (and/or other associated concerns of
Elegant Industries Pvt. Ltd., if any.) to Mr. B. K.
Nevatia at face value."
4. Dileep Nevatia (and/or companies controlled by
him) will vacate premises occupied by them at
Udyog Bhavan, whether by paying rent or not."
He then invited our attention to the cross-examination of
Appellant No.1 and pointed out the following answers given by
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him: -
"Q26. Have you sold or transferred any shares held by
you in Elegant Industries Pvt. Ltd., to any
person?
Ans. No.
Q27. Have you agreed / offered to sell your shares in
Elegant Industries Pvt. Ltd. to any person at any
point of time?
Ans. I had offered to transfer my shares in the name
of my father in terms of the Family Agreement of
1990.
Q28. Did you transfer the shares as offered by you as
stated in your previous answer?
Ans. The transfer could not take placed because by
this time, my mother had filed the present suit."
Basis the above, Mr. Joshi submitted that Appellant No.1 had
admittedly not performed/discharged his obligations under the
Family Agreement. He submitted that basis this, the Appellants
could not therefore seek specific performance thereof much less
be granted a decree as prayed for in the Counter Claim.
11. Mr. Joshi then submitted that another factor that ought
to be taken into consideration was that the so-called admission
LGC 14 of 20
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which the Appellants sought to place reliance upon was of the
statement recorded in the cross-examination in the year 2009. He
submitted that the Notices of Motion was taken out by the
Appellants only in the year 2016 which was not only well after the
framing of Issues but also after the cross examination of all, but
one witness being completed. Mr. Joshi then submitted that the
Original Plaintiff was infact constrained to file the said Suit since
Appellant No. 1 had failed and neglected to perform his obligations
under the Family Agreement. He submitted that the conduct of the
Original Plaintiff post 1992 made explicit that the Original Plaintiff
did not want to act on both the Family Agreement as well as the
said Declaration and hence the question of the grant of a decree
on admission at this stage did not arise.
12. Mr. Joshi, then placed reliance upon a judgment of the
Hon'ble Supreme Court in the case of Hari Steel and General
Industries Ltd. and Anr. Vs. Daljit Singh and Ors 3 to submit
that the grant of a decree under Order XII Rule 6 of the CPC was a
discretionary relief. He pointed out from the said judgment that
3 (2019) 20 SCC 425
LGC 15 of 20
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when the trial had already commenced, it was desirable to record
findings on various contentious issues and disputes in the Suit on
merits by appreciating evidence and it was not proper in such a
fact scenario to make a roving inquiry for disposal of the
application filed under Order XII Rule 6 CPC. Mr. Joshi submitted
that given the fact that the issues, in the captioned Suit, had been
framed far back in the year 2006 and the cross-examination of the
Defendants was almost complete, the findings of the Hon'ble
Supreme Court in the case of Hari Steel General Industries
Ltd. and Anr. (supra) were squarely applicable to the facts of the
present case and the question of this Court at this stage of the
trial considering an Application under Order XII Rule 6 of the CPC
without appreciating the evidence as a whole does not arise.
13. Basis the above, the Learned Senior Counsel submitted
that there was no question, in the facts of the present case, of the
Appellants being entitled to any order, much less an order of a
decree on admission under the provisions of Order XII Rule 6 of
the CPC. He submitted that consequently, the question of the
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Appellants at this stage being granted any relief in the Second
Notice of Motion also did not arise and basis this he submitted that
the Appeals ought to be dismissed.
14. We have heard Mr. Nevatia - Appellant No.1 in person
and Mr. Joshi, the Learned Senior Counsel for Respondent Nos
1(a) and 1(b) in Appeal no. 345 of 2019. We have also perused
the copies of both the Notices of Motion and the documents
annexed thereto as also the case law cited and after a careful
consideration of the same, find that there is absolutely no infirmity
in the Impugned Order. We find that both the Appeals deserve to
be dismissed for the following reasons, viz.
i. Firstly, we are unable to read the answer given by the
Original Plaintiff in cross examination as being an
admission which would entitle the Appellants to a
decree on admission as has been prayed for. We say so
because as has been held by this Court in the case of
Shantez and anr. (supra) an admission for the
purposes of Order XII Rule 6 of the CPC has to be
LGC 17 of 20
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unambiguous, clear and unequivocal. While there is no
dispute that the original Plaintiff has admitted execution
of the said Declaration dated 27th November 1992, the
facts remain that the original Plaintiff has (a) filed a
suit for cancellation of the Family Agreement; (b) left a
Will bequeathing the said bungalow "Shashi Deep" to
Respondent No.5; and also that (c) the Appellants have
themselves sought specific performance of the Family
Agreement as also of the said Declaration dated 27 th
November 1992. Given the totality of these facts, we
cannot at this stage read the answer given in the cross-
examination whereby the original Plaintiff has admitted
execution of the said Declaration dated 27 th November
1992 as being an admission under Order XII Rule 6 of
the CPC by ignoring all the other attending
circumstances. This so called "admission" is something
which would have to be decided at the time of final
hearing of the Suit after weighing in all the evidence
which has come on record. Thus we are not persuaded
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to read the same as being an admission basis which the
Appellants would be entitled to a decree at this stage.
ii. Secondly, we cannot lose sight of the fact that the
Hon'ble Supreme Court in the case of Hari Steels and
General Industries Ltd. and Anr. (supra) has
specifically held that (a) the grant of relief under Order
XII Rule 6 of the CPC is a discretionary one; and (b)
when the trial has already commenced, it is desirable to
record findings on the various contentious issues and
disputes raised by the parties on merits by appreciating
the evidence and not to make a roving enquiry for the
disposal of an application filed under Order XII Rule 6
of the CPC.
15. In this context, we cannot ignore the fact that the said
Declaration upon which reliance is placed is dated 27th November
1992, the Issues were framed in the year 2006 and the cross-
examination of the original Plaintiff took place in the year 2009.
LGC 19 of 20
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Presently the cross-examination of all but one witness is
completed.The Notices of motion were taken out in the year 2016
which is after approximately 7 years from the date of the so called
admission and at an advanced stage of trial. Hence in these facts,
the ratio laid down in the judgment of the Hon'ble Supreme Court
in the case of Hari Steels and General Industries Ltd. and
Anr. (supra) would squarely apply and therefore occasion to
exercise the discretionary jurisdiction under Order XII Rule 6 of
the CPC would not arise.
16. In view of the aforesaid findings, both the Appeals are
dismissed.
17. In view of the dismissal of both the Appeals, the
captioned Interim Applications do not survive and the same are
also dismissed.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
LGC 20 of 20
