Disposed

Boman D. Faramarji and Anr. v. Banoo Merwan Aref and Ors.

Bombay HC3 Sept 2018NMA/1077/2010

Case brief

AI extract

What is this about?

This court disposed of a Notice of Motion filed by appellants seeking to set aside an order disposing of an appeal and for restoration of that appeal. The court held that no need to entertain the motion, keeping merits open as the interim order operates till suit disposal.

What did the court decide?

Notice of Motion for setting aside the judgment in the appeal and restoration dismissed.

Boman D. Faramarji and Anr. Vs Banoo Merwan… — Civil Procedure and Limitation | Bombay HC (2018)

¶1

1/3 8-nma-1077-10 in app-1351-98.doc

¶2

DSS

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1077 OF 2010 IN

¶4

APPEAL NO. 1356 OF 1998

¶5

Boman Dinyar Faramarzi and anr.

¶6

… Applicants/ Appellants.

¶7

V/s.

¶8

Banoo Merwan Aref and ors. … Respondents.

¶9

Mr. Ganesh Ambekar I/b Thakore Jariwala and Associates for the Applicants/Appellants.

¶10

Mr.Vatsal Shah and Mr. Dipak Khilari I/b Mr. Chetan N. Mehta for Respondent Nos.2 to 5.

¶11

CORAM : A.S. OKA AND M.S. SONAK, JJ. DATE : 3^rd SEPTEMBER 2018.

¶12

P.C.:

¶13

1] Heard the learned counsel appearing for the parties.

¶14

2] The present Notice of Motion is taken out in a disposed of appeal preferred against an interim order in a suit. The appeal was disposed of by the judgment and order dated 11^th March 2010 passed by a Division Bench of this Court. The appeal was preferred by the original 1^st and 2^nd defendants. The subject matter of the challenge in the appeal was the order dated 16^th October 1998 passed by the learned Single Judge in a Notice of Motion taken out by the original plaintiffs. After appeal was admitted, the Division Bench of this Court passed an interim order dated 30^th January 1999 in terms of prayer clause (a) of Notice of Motion No. 1876 of 1996. By the said order, the appellants in the appeal were directed to deposit with the Prothonotary and Senior Master an amount of

¶15

DSS

¶16

2/3 8-nma-1077-10 in app-1351-98.doc

¶17

Rs.8 Lakhs. The appellants were directed to deposit with the Prothonotary and Senior Master, a sum of Rs.27,000/- per month from January 1999 onwards and the respondents Nos.1 to 4 in the appeal were permitted to withdraw 50% amount deposited. While disposing of the appeal finally by the order dated 11^th March 2010, the Division Bench of this Court continued the interim order dated 30^th January 1999 till disposal of the suit and the appellants were directed to clear the arrears, if any, in terms of the said order within a period of six weeks. The prayers in this Notice of Motion is for setting aside the order dated 11^th March 2010 by which the appeal was disposed of and for restoration of the appeal.

¶18

3] The learned counsel appearing for the applicants (original plaintiffs) submitted that though the hearing of the suit was expedited by order dated 11^th March 2010, for one reason or the other, the hearing could not proceed. He states that a Notice of Motion is taken out by the appellants in the appeal for grant of permission to file written statement is pending. He submits that as a result of continuation of the order dated 30^th January 1999, the 1^st and 2^nd defendants (the appellants) continued to run lucrative business of restaurant by paying a paltry amount. He submitted that the reasons for absence of the advocate for the applicants, who are the respondents in the appeal, at the time of hearing of the appeal have been set out in the affidavit in reply to the appeal.

¶19

4] We have considered the submissions. As stated earlier, the appeal was preferred by the 1^st and 2^nd defendants for challenging the interim order dated 16^th October 1998. The result of the judgment and order

¶20

DSS 3/3 8-nma-1077-10 in app-1351-98.doc

¶21

dated 11^th March 2010 in appeal is that the impugned interim order passed by the learned Single Judge was substituted by the interim order dated 30^th January 1999 passed in the appeal and the said interim order is to operate till the disposal of the suit. The suit is of the year 1996.

¶22

5] Thus, the effect of the judgment dated 11^th March 2010 while disposing of the appeal is that the order dated 30^th January 1999 passed by the Division Bench will have to be treated as the interim order passed by the learned Single Judge in the suit.

¶23

6] If with the passage of time, there are change in circumstances warranting vacation of the order dated 30^th January 1999 or modification thereof, the present applicants can always apply before the learned Single Judge for appropriate relief as the order dated 30^th January 1999 is an interim order in the suit. If a case is made out of change in circumstances warranting modification of the said order, the learned Single Judge can alway do so, in accordance with law.

¶24

7] In the circumstances, it is not necessary to entertain this Notice of Motion for setting aside the judgment in the appeal and for restoration of the appeal. Subject to what is observed above, the Notice of Motion is disposed of. All contentions on merits are kept open.

¶25

(M. S. SONAK, J.) (A.S.OKA, J.)

¶26

Dinesh Digitally signedby Dinesh Sadanand Sadanand Sherla Sherla Date: 2018.09.2415:10:59 +0530

Boman D. Faramarji and Anr. v. Banoo Merwan Aref and Ors.

Case brief

What is this about?

What did the court decide?

Boman D. Faramarji and Anr. v. Banoo Merwan Aref and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Bholenath Raghuvir Kahar Vs State of Maharashtra and Anr.

Keshav Bistir Mestry Since Deceased through Hhis Heirs and Legal Respresentatives, and Ors. Vs the State of Maharashtra and Ors.

Eastern Steel Industries Vs Vasundhara Marble Industry Pvt. Ltd.

Europlast India Ltd. Vs Gorakhnath Electicals Pvt.Ltd. and 7 Ors.

State of Maharashtra and 2 Ors. Vs India Farmers Pvt. Ltd. and Anr. and Anandprakash Pyarelal Khanduri (Applicant)

Smt. Nilambari Nandkishor Kulkarni Vs State of Maharashtr through Hon'Ble Revenue Minister of State, and Ors.