Hdfc Ltd. Vs Jayesh C. Doshi and Ors.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO.2096 OF 2007

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IN
SUIT NO.2555 OF 2003

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H.D.F.C.Ltd.

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..Plaintiff.

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V/s.

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Jayesh C. Doshi & Ors.

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..Defendants.

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Mr.Sanjay Udeshi for plaintiff.

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Mr.Shashi Jain a/w U.Jain i/b. Naina de for defendant
Nos. 1 and 2.

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Ms.Mehrunnisa Sura i/b. Yusuf & Associates for
defendant Nos. 3,4 and 5.

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CORAM: A.M.KHANWILKAR,J

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DATE : JUNE 22, 2007.

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P.C. :

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1.Heard counsel for the parties.

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2.In fact, the leading Notice of Motion is taken
out by the plaintiffs. Counsel for the defendant Nos.
1 and 2 submits that before passing any order on the
said Notice of Motion No.1215 of 2007, it will be
necessary to pass order on the present Motion.
Counsel for the plaintiff however, submits that if the
leading Notice of Motion No.1215 of 2007 was to
succeed, nothing will survive in the present Motion.
Nevertheless, I herein proceed to pass order in the

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present Motion in the first instance.

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3.This Motion is not contested by the plaintiff.
According to the plaintiff, it makes no difference
whether the defendant No.3 remains agent of the Court
Receiver, so long as the Court Receiver is continued
in respect of the suit property during the pendency of
the suit.

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4.This Motion is however, resisted by the
defendant No.3. In the first place, it is submitted
that advocate on record for defendant Nos. 1 to 5
being common, it will be inappropriate for them to
continue in the present Notice of Motion. It is
intriguing that the request on behalf of the advocate
on record for recusing to appear is restricted to the
present Motion. If the advocate on record feels
embarrassed to appear for defendant No.3 in this
Motion, for the same reason, ought not to continue to
appear in the main proceeding. However, the stand
taken by the advocate for the defendant No.3 is that
they will appear for defendant Nos. 1 to 5 in the
main proceeding, but not for defendant No.3 in the
present Motion. The request for adjournment on this
count is incomprehensible. So long as the Advocate is
not discharged, is bound to represent his client.

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Obviously, this controversy is raised only to protract
the matter. I see no propriety in adjourning the
matter.

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5.Significantly, the relief which is claimed in
the present Motion, is limited to deleting the name of
defendant No.3 as agent of the Court Receiver in
respect of the suit flat. This prayer is founded on
the Registered document, which is at Exh.‘C’ at
page-16. The said document indicates that it is only
the defendant Nos. 1 and 2, who became owners in
respect of the suit flat under the said conveyance.
Counsel for the defendant No.3 would however, contend
that defendant No.3 has also contributed towards
consideration for purchase of the suit flat. There is
no material to support this plea, available on record.

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6.In any case, as presently advised, this Court
will have to accept the claim of the defendant Nos. 1
and 2, which is founded on the basis of a registered
agreement. Assuming that the defendant No.3 was to
place on affidavit that he has also contributed
towards consideration amount, that will be only his
bare words, not corroborated by the registered
document. The Court will prefer to rely on the
registered document till the authenticity and validity

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thereof has been put in issue before appropriate
forum.

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7.Accordingly, I see no reason to decline the
request of defendant Nos. 1 and 2 to delete the name
of defendant No.3 as agent of the Court Receiver in
respect of the suit flat. The fact remains that
defendant Nos. 1 and 2 will continue to remain as
agent of the Court Receiver. The defendant No.3 even
if succeeds at a later point of time in establishing
its claim, the possession of the suit flat by the
concerned parties will only be as agent of the Court
Receiver. Thus understood, it will make no difference
or cause any prejudice to the defendant No.3 in any
manner.

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8.Accordingly, this Motion is made absolute in
terms of prayer clause (b) and (c), which read thus:

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"(b)that ad-interim order dated 29th
November, 2003 and final order dated 30th
September, 2005 passed by this Hon’ble Court
in Notice of Motion No.2708 of 2003 in the
above suit be modified and corrected by
deleting the name of Defendant No.3 as an
agent of Court Receiver, High Court, Bombay
with all other consequential modifications/
corrections;

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(c)that the Court Receiver, High Court,
Bombay be directed to delete the name of
Defendant No.3 as his agent for the suit flat
in the above suit and other proceedings before

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the Court Receiver;"

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9.Ordered accordingly.

Hdfc Ltd. v. Jayesh C. Doshi and Ors.

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Hdfc Ltd. v. Jayesh C. Doshi and Ors.

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