{"id":48755,"date":"2008-12-17T00:00:00","date_gmt":"2008-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-k-taneja-ors-vs-mr-kezer-kharawala-iby-ms-r-k-on-17-december-2008"},"modified":"2016-11-14T10:07:28","modified_gmt":"2016-11-14T04:37:28","slug":"h-k-taneja-ors-vs-mr-kezer-kharawala-iby-ms-r-k-on-17-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-k-taneja-ors-vs-mr-kezer-kharawala-iby-ms-r-k-on-17-december-2008","title":{"rendered":"H.K. Taneja & Ors vs Mr.Kezer Kharawala I\/By M\/S.R.K. … on 17 December, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
H.K. Taneja & Ors vs Mr.Kezer Kharawala I\/By M\/S.R.K. … on 17 December, 2008<\/div>\n
Bench: R. S. Dalvi, R. S. Dalvi<\/div>\n
                                        1\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                              O. O. C. J.\n\n\n\n\n                                                                            \n            Notice of Motion No.________of 200 8\n                              IN\n\n\n\n\n                                                    \n                     Suit No.1094 of 2007\n\n    H.K. Taneja & ors.           ..                    .. Plaintiffs\n             v\/s.\n\n\n\n\n                                                   \n    Bipin Ganatr a               ..                    .. Defenda nt\n             And\n    Keshavrao J. Bhosle          ..                    .. Applicant\n\n\n\n\n                                           \n    Mr.Arif Bookwala, Sr.Advocate with Ms.Manjiri Shah                       i\/by\n    M\/s.Pam a ni & Pamani for Plaintiff.\n                          \n    Mr.Kezer Kharawala i\/by M\/s.R.K. Associates for Defendant.\n    Mr.D.D . Madon with Mr.D.P . Thakare for Applicant.\n                         \n    Mr.Kishore Rane, represent ative of C.R., present.\n            ----\n                               CORAM : SMT.ROSHAN DALVI, J.\n          \n\n\n                                 Dated       : 17 th Dece mb er 200 8\n       \n\n\n\n    JUDGMENT :\n<\/pre>\n
             Not on board.       By consent, taken on board and<\/p>\n
    argued by all the Advocates.\n<\/p>\n
    2. The Applicant has applied under Order 40 Rule 1(2) of the<\/p>\n
      Code of Civil Procedure.        The Applicant must show that he
\n      was in possession of the property such that the Plaintiffs or
\n      the Defenda nt had no present right to remove him.\n<\/p>\n
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\n                                         2<\/span><\/p>\n
    3. The   Applicant   has   relied       upon   an     Agreement            dated<\/p>\n
      22.2.2001 to show his initial entry into the suit premises.
\n      This is a Leave and Licence Agreement executed by one<\/p>\n
      Urmila Shah, who was the widow of one L.D. Shah, who
\n      owned the suit flat and who settled it upon a trust in favour
\n      of the Plaintiffs with a provision that his widow would live in<\/p>\n
      the suit flat for her life-time.      The settlor as well his widow
\n      have since expired. This Agreement is not in favour of the<\/p>\n
      Applicant but his daughter one Mitali Sawant. It is a licence
\n      for 11 months which has expired by efflux of time.\n<\/p>\n
                             ig                                              It is in
\n      respect of the permission to occupy one room in the suit flat<\/p>\n
      with the common use of the bathroom, toilet and kitchen by
\n      the licensee. The licensee is to hand over possession of the
\n      premises on the expiration of licence. Though it goes without<\/p>\n
      saying, it states that after the termination of the licence the<\/p>\n
      occupation of the licensee would be deemed to be that of a
\n      trespa s ser.\n<\/p>\n
    4. The Agreement of licence is not registered as required.                        It
\n      cannot be looked into. Mr.Madon argued that it is notarized.
\n      It may be mentioned that notarization is not an additional<\/p>\n
      qualification to give the unregistered docume nt any extra
\n      worth.    Be that as it may, even the notarization is not done
\n      as required. It does not show the number of notarial register
\n      of the notary as per the required rules. Its execution cannot<\/p>\n
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\n                                       3<\/span><\/p>\n
     even be verified and the Applicant has taken no pains to get<\/p>\n
     it verified.\n<\/p>\n
    5. The procedure relating to notarization under the Notaries
\n     Rules, 1956 framed under the Notaries Act, 1952 has not
\n     been followed.      Under Rule 11(2), the notary is required to<\/p>\n
     maintain a notarial register in prescribed form No.XV. The
\n     form shows 11 column s, including the column of the Serial<\/p>\n
     number,        Date, Name of the Notarial act, Name of the
\n     executan t, Content s of docume nt s, Notarial fee, Signat u res<\/p>\n
     of the executa nt and the Notary. The purpose of this rule is<\/p>\n
     to relate each notarized docume nt to the serial number in
\n     the notarial register required to be maintai ned by each
\n     notary in the prescribed form.        Hence the serial num ber of<\/p>\n
     the entry must be put on the docume nt to collate the entry<\/p>\n
     with   the     docume nt.   In case   of dispute    the      factum        of
\n     notarization would have to be separately proved by the
\n     Applicant since, unlike registration, there is no presu m ption<\/p>\n
     of execution of a notarized docume nt.      It is seen that in this
\n     case the notary has not shown the serial number and the
\n     register number in which the entry is made. It would be for<\/p>\n
     the Applicant to prove the notarization in view of the dispute.
\n     The Applicant has not got produced the relevant notarial
\n     register of the notary, kept in the normal course of his
\n     conduct      as such   notary, to prove the execution              of the<\/p>\n
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\n                                        4<\/span><\/p>\n
     docume nt     before    him.    The   documen t       being       otherwise<\/p>\n
     unregistered and inadmissible in evidence is, therefore, not
\n     even prima facie shown to be notarized.\n<\/p>\n
    6. In the case of Prataprai Trumbaklal Mehta vs. Jayant
\n     Nemcha<\/a> nd Shah & anr., AIR 199 2 Bom 149 , this Court<\/p>\n
     considered,     inter   alia,   the   essence   of      notarization           of
\n     docume nt s    by persons       identified before notary and                 the<\/p>\n
     prescribed Rules, more specially Rule 11 required to be
\n     followed for every notarial act.\n<\/p>\n
                              ig            That was a case of reliance
\n     upon a copy of a document certified as true copy by the<\/p>\n
     notary. That notarial act remained unregistered.                  The mere
\n     fact that the docume nt was notarized was held not to lend
\n     any authe n ticity to the docume n t in the absence of seeing<\/p>\n
     the notarial register kept by the notary in the course of his<\/p>\n
     conduct as a notary as per Rule 11 of the Notaries Rules.
\n     Evidence was led in that case.         The notary was summo ned.
\n     The relevant notarial register was produced.               No entry was<\/p>\n
     found in the notarial register relating to the trans action
\n     claimed to have taken           place under     the copy documen t
\n     notarized     as true   copy.     The notary       deposed         that      the<\/p>\n
     executan t    was not before him. He had not made any entry
\n     in the notarial register as, according to him, that was not
\n     required.     He was only required to verify the docume nt,
\n     compare the docume nt and endorse it as true copy if it was<\/p>\n
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\n                                        5<\/span><\/p>\n
      the identical copy of the original. It was observed thus :-\n<\/p>\n
              “Law takes judicial notice of seal of a notary. In<\/p>\n
              ordinary course, an initial presumption may be made
\n              about genuinene s s of the notarised copy of the
\n              document. The underlying idea behind such
\n    presu mption is that the notary is normally a responsible<\/p>\n
    member of the legal profession and he is        expected to take
\n    due care to satisfy himself about the identity   of    the   party
\n    appearing before him. If the party     appearing      before   the
\n    notary is not kno w n to the notary, the notary must get the
\n    party identified by an       Advocate know n to him and take<\/p>\n
    signature of both of         them in token thereof .”\n<\/p><\/blockquote>\n
    The contents of Rule 11, its purpose and object as well as the<\/p>\n
    conseque nces of non- compliance of the rules have also been
\n    considered in Para- 11 of that judgment.          Reference has been
\n    made specially to Rule 11(2) of the Rules which provides that<\/p>\n
    every notary shall maintain notarial register in prescribed form<\/p>\n
    No.XV and the register requires entry of every notarial act in
\n    the notarial register and taking of signat ure of the person
\n    concerned in the register. It is observed that negligence of the<\/p>\n
    notary     in   the   discharge   of his   notarial     functions          may
\n    jeopardise the interest of third parties and public interest
\n    itself.   Upon seeing that the notarial register did not disclose<\/p>\n
    the notarial entry relating to the notarized documen t produced
\n    before the      Court,   it was   held   that   no evidentiary           value
\n    whatsoever could be attached to such a docume nt.\n<\/p>\n
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\n                                           6<\/span><\/p>\n
    7. It may be mentioned         that       that   was a case of only a<\/p>\n
     certification of copy of a documen t as a true copy. Our case
\n     goes much further.      It is the case of the execution of the<\/p>\n
     original docume n t itself.     The executa n t is required to be
\n     present before the notary.           He is required to be identified
\n     before the notary.    He is required to sign before the notary.\n<\/p>\n
     The notary is required to witness such an act and register
\n     the trans action.    Keeping in mind that the documen t relied<\/p>\n
     upon by the Applicant herein is not registered and hence is
\n     inadmissible in evidence, even the factum of the execution of<\/p>\n
     the docume n t is not even prima facie shown by the Applicant<\/p>\n
     upon proving the notarial act. It is for the Applicant to make
\n     out his case. The prima facie case of proof of the execution of
\n     the docume nt on a given date by the executa n t before the<\/p>\n
     notary can be evidenced by the production of the true or<\/p>\n
     certified copy of the relevant portion of the notarial register
\n     showing that the entry was made on the relevant date in the
\n     normal course of the conduct of the notary.                  The Applicant<\/p>\n
     has underta ke n no exercise to subst a n ti ate his case of the
\n     execution of the docume nt otherwise completely inadmissible
\n     in evidence. Since even the notarial act is not shown even a<\/p>\n
     prima facie case cannot be made out.\n<\/p>\n
    8. In the case of J.G. Hegde vs. R.D. Shukla, AIR<\/a> 200 4
\n     Bombay 55 , this Court once again considered the notarized<\/p>\n
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\n                                        7<\/span><\/p>\n
      writing which was styled as “Affidavit- cum- Indemnity Bond”.\n<\/p>\n
      The relevant notarial register got produced by the Court did
\n      not reveal the required entry. The purpose of Rule 11(2) of<\/p>\n
      the Notaries Rules requiring every notarial act to be serially
\n      numbered in the register to be maintai ned by the notary was
\n      considered. The dual purpose served by such a practice was<\/p>\n
      set out.    It was observed that one was to identify every
\n      docume nt with reference to the serial number and the other<\/p>\n
      was   to   prevent   execution       of anti- dated    documen t s          by
\n      inserting an entry in between two successive entries which<\/p>\n
      are serially num bered.\n<\/p>\n
      The document s which are notarized do not even show the
\n      serial num ber or the register number under which they are<\/p>\n
      registered and entered.     Nevertheless, the notary, if called<\/p>\n
      upon by the executa nt to prove the notarization, would be
\n      bound to produce the relevant register of the relevant date.
\n      Only the production of such a register would show whether<\/p>\n
      or not the documen t was indeed notarized on the date it is
\n      stated to be executed.\n<\/p>\n
    9. There have been numerou s cases of anti- dated docume nt s
\n      shown to be notarized other than the one that came up
\n      before the Court in the aforesaid two cases. Hence it cannot
\n      be put past any executa n t to produce the docume n t shown<\/p>\n
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\n                                             8<\/span><\/p>\n
     to be notarized on a given date without subst a n ti ating that<\/p>\n
     fact through the manda torily required stat utory procedure.
\n     No documen t thrown in the face of the Court as notarized<\/p>\n
     docume nt can, therefore, prevail without the accompa nying
\n     notarial registration of entry. Of course, even if that is
\n     shown,    the    fact     that        the    docume nt    has        remained<\/p>\n
     unregistered when it creates an interest in an immovable
\n     property would remain to be admissible in evidence. But at-\n<\/p>\n
     least the Court could be satisfied prima facie about its
\n     execution. The docume nt produced by the Applicant without<\/p>\n
     showing compliance of the Notaries Act and Rules bears no<\/p>\n
     worth and deserves to be fully rejected.\n<\/p>\n
    10. It may be mentioned            straightway     that   the absence             of<\/p>\n
     registration    as      well     as    the    required     procedure            for<\/p>\n
     notarization would make the docume nt so inadmissible in
\n     evidence as to not allow the Applicant to base his case upon
\n     such a docume nt.          The object of registration as well as<\/p>\n
     notarization is lost if a docume nt of the kind can be looked
\n     into or considered by the Court, even prima facie, to take the
\n     content s as correct.\n<\/p>\n
    11. The Applicant has also relied upon a declaration of the
\n     deceased Urmila Shah, dated 17.5.2006 (who was stated to
\n     be 92 years old then), who declared about the relations hip<\/p>\n
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\n                                         9<\/span><\/p>\n
      with the Defendant in this Suit who came to be inducted by<\/p>\n
      her in the suit premises to take care of her during her
\n      lifetime and who has resided therein since.                Ju st as the<\/p>\n
      Defenda nt, who was her nephew, was “helping her”, the
\n      Applicant is stated to have been helping her and her nephew.
\n      Though the declaration does not make fine reading and its<\/p>\n
      precise purport is undeciphera ble, the Applicant seeks to
\n      rely upon the reference to his name in paragraph 3 at page 2<\/p>\n
      of the docume nt.     The Applicant also relies upon the last
\n      paragrap h in the docume n t stating that the deponent had<\/p>\n
      executed the declaration without press u re, fraud or coercion<\/p>\n
      on the date of its execution and that it was binding upon
\n      herself, her family members and the Defenda n t also. She
\n      admittedly expired 4 month s thereafter, on 22.9.2006.\n<\/p>\n
    12. The declaration does not confer any right or title upon any
\n      one.      It merely states      the course   of events        that     have
\n      transpired and about how some parties litigate.              Aside from<\/p>\n
      the name of the Applicant in the docume n t, it shows little
\n      else.     Though the declaration sets out the acts of some
\n      parties    who litigate   and    shows   apprehe n sion        of future<\/p>\n
      litigation and gives notice that it was declared by her free
\n      consent and would be binding on several persons, including
\n      herself, it does not mention about the Leave and Licence
\n      Agreement executed by the deponent herself in favour of the<\/p>\n
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\n                                              10<\/span><\/p>\n
     daughter of the Applicant 5 years prior thereto under the<\/p>\n
     aforesaid Agreement dated 22.2.2001.\n<\/p>\n
    13. Mr.Madon argued that this declaration has been notarized
\n     which carries some weight. The declaration suffers from the
\n     same      ill   of   absence       of   the     prescribed           procedure           of<\/p>\n
     notarization.\n<\/p>\n
    14. The Applicant has further relied upon another Agreement
\n     dated 14.10.2005 between the Defenda nt and the Applicant.\n<\/p>\n
     This Agreement is executed on 2 stamp papers of Rs.50 \/ –\n<\/p>\n
     each issued on 13.10.200 5. They are issued not in the name
\n     of the Defendan t or the Applicant as mandatorily required,
\n     but in the name of the Advocate J.K. Natha ni (who has<\/p>\n
     shown his address at Borivli in the rubber- stamp on the<\/p>\n
     earlier    documen t        of    22.2.2001)          and      one      P.V.       Dalvi,
\n     M.S.S.I.D.C . Ltd.       That is a Licence Agreement granting
\n     licence of the entire flat in favour of the Applicant for 11<\/p>\n
     month s.        The period of the licence has been left blank.
\n     Deposit of a large amoun t of Rs.2,52,5000 \/ – is purportedly
\n     taken as security deposit. Aside from a receipt executed by<\/p>\n
     the Defenda nt, there is nothing else to subst a n tiate the
\n     payment made.          The entire amou nt is presu m a bly paid in
\n     cash.     Though     the Applicant            has     relied upon           his bank
\n     passbook        to   show        various      other     entries,         this       entry<\/p>\n
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\n                                         11<\/span><\/p>\n
     admittedly does not find place in the passbook and no other<\/p>\n
     material is produced to show the payment made under any
\n     cheque.      This Licence Agreement executed as late as in<\/p>\n
     October 2005 has also remained unregistered.                       It is also
\n     similarly incorrectly notarized. Rule 11 of the Notaries Rules
\n     are not followed.        Even the revenue stamps showing the<\/p>\n
     notarial fees \/ c h a rges are not affixed.        The notarization is
\n     rather meaningless. Aside from the stamp of the notary, the<\/p>\n
     Agreement shows nothing to evince its execution.                    Even the
\n     presence     of the     Advocate
\n                               ig        to interpret      and      explain        the
\n     Agreement or to introduce the party to the notary is absent.\n<\/p>\n
     It suffers from the same malaise which led the Court to
\n     reject the notarial documen t           in the case of             Prataprai
\n     (supra) .\n<\/p>\n
    15. It may be mentioned that each of the notarial stamp s on
\n     each of the aforesaid 3 documen t s            is illegible. Why the
\n     parties went to those notaries, who appear to be at different<\/p>\n
     places, cannot be understood. The Advocates who identified
\n     the parties before the notary in 2 of the 3 Agreements are in
\n     Borivali (East) and at the Esplana de Court, Mumbai.                         The<\/p>\n
     declaration      of the deceased        Urmila Shah,        who lived at
\n     Peddar Road, is surprisingly identified by Advocate in the
\n     Esplan ade       Court before a notary whose address                     is not
\n     shown.      In    the   Leave   and      Licence    Agreement             dated<\/p>\n
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\n                                      12<\/span><\/p>\n
     22.2.2001, she has been identified by another Advocate from<\/p>\n
     Borivali, Mumbai.\n<\/p>\n
    16. Mr.Madon    argued   that   though     the document s           are not
\n     registered, they are notarized and if the notarization is not
\n     accepted, the Court will be rejecting the identification and<\/p>\n
     the explanation of the Advocates who have stamped those
\n     docume nt s.     The Leave and Licence Agreement in favour of<\/p>\n
     the Applicant is not identified by any Advocate.                    A mere
\n     notarial    stamp   thereon
\n                              ig    without     reference     to the        serial
\n     number      on the notarial register, therefore, requires                  the<\/p>\n
     Court to reject the notarization.        The other 2 docume nt s are
\n     not docume nt s of title of the Applicant.             The Agreement
\n     dated 22.2.2001 is in favour of his daughter who is not the<\/p>\n
     Applicant before the Court. The identification of the deceased<\/p>\n
     in that docume nt is by an Advocate from Borivali. It is
\n     wonderous how he identified an old lady then of about 87
\n     years,     living in Peddar    Road.     The identification          of the<\/p>\n
     deceased in the documen t dated 17.5.2006 is by yet another
\n     Advocate. The identification creates no confidence. It is not
\n     in terms of the requiremen t of law and legal procedure.\n<\/p>\n
     None of these documen t s, therefore, shows the possession of
\n     the Applicant in the suit premises as claimed by him arising
\n     from under these docume nt s and cannot even be looked
\n     into.\n<\/p>\n
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\n                                      13<\/span><\/p>\n
    17. It is contended on behalf of the Plaintiffs that this case is
\n      not of total lack of possession simplicitor.         It is a case of<\/p>\n
      malafides, mischief and fraud played upon the Court by the
\n      Defenda nt and the Applicant in concert and collusion.                  The
\n      Plaintiffs’ Advocates have painsta ki ngly undert ake n the effort<\/p>\n
      of obtaining inspection     and     copies of certain         litigations
\n      between the Applicant and the Defendan t               in the Small<\/p>\n
      Causes    Court.    The Plaintiffs have given notice to the
\n      Applicant’s Advocate as well as the Defenda nt’s Advocate to<\/p>\n
      produce the papers and proceedings in certain 3 Suits filed<\/p>\n
      in the Small Causes Court.        None is produced by either of
\n      them.    The Plaintiffs have applied for and produced certified
\n      copies thereof.\n<\/p>\n
    18. Mr.Bookwala took me through the result of that               research.
\n      In certain   corresponde nce      that   took place between              the
\n      parties prior to the filing of this Suit, the Defenda n t had<\/p>\n
      promised to vacate the suit flat by his letter dated 1.11.2006
\n      written to the Plaintiffs, Exhibit- X to the Plaint. To scuttle
\n      giving up the said vacant possession as agreed by him, a<\/p>\n
      Suit has been filed by Mitali, the daughter of the Applicant
\n      against the Defenda nt on 23.1.2007 being L.C. Suit No.46 of
\n      2007 claiming sole and exclusive possession of the suit flat.
\n      The Constituted Attorney of the Defenda n t is her own father,<\/p>\n
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\n                                    14<\/span><\/p>\n
      the Applicant herein!   On 25.4.2007, the Suit came to be<\/p>\n
      settled by the Applicant’s daughter and the Defenda nt filing
\n      Consent Terms under which the Defenda nt agreed not to<\/p>\n
      dispossess her without following due legal process.\n<\/p>\n
    19. Another Suit came to be filed by the Defenda nt against the<\/p>\n
      daughter of the Applicant on 13.2.2008 in which Consent
\n      Terms came to be filed by the parties on 8.8.2008 under<\/p>\n
      which the Applicant’s daughter claimed no interest in the
\n      suit premises.   Mr.Bookwala pointed out that the Advocate<\/p>\n
      for the Defenda nt   in this Suit has been shown as the<\/p>\n
      Advocate for the daughter of the Applicant in the Suit in the
\n      Small Causes Court, Bombay.        The Constit uted Attorney,
\n      who verified that    Plaint, is the Constit uted      Attorney of<\/p>\n
      another occupa nt of the flat, one Farida Galabai, who has<\/p>\n
      similarly claimed to be in juridical possession in another
\n      Notice of Motion taken out in this Suit being Notice of Motion
\n      No.3965 of 2008.     The Advocate for the daughter of the<\/p>\n
      Applicant in that case is the Advocate of that party in yet
\n      another Suit filed in the Small Causes Court filed by that
\n      other occupan t being   R.A.D. Suit No.1739 of 2007 against<\/p>\n
      the Defenda nt. On 27.11.2007, Consent Terms were filed in
\n      that Suit between that occupa n t and the Defendan t, under
\n      which tenancy in favour of that occupa n t was confirmed by
\n      the Defenda nt !! She claims, interalia, the part of the suit<\/p>\n
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\n                                           15<\/span><\/p>\n
      premises claimed by the Applicant herein.\n<\/p>\n
    20. The 2 Cross Suits between the Defendan t on one hand and<\/p>\n
      the Applicant and \/ o r his daughter on the other show the
\n      transp a r e n t collusion between the parties and the desire to
\n      outreach the Court based upon the position that then suited<\/p>\n
      the parties.\n<\/p>\n
    21. Aside from these litigations with regard to the suit flat itself,
\n      the Plaintiffs have relied upon other proceedings to show the<\/p>\n
      actual address of the Applicant in Court records. In a Suit<\/p>\n
      being Summ a ry Suit No.3501 of 2007 filed by the Applicant
\n      against    the Defenda nt     for recovery of Rs.5 Lakhs                   with
\n      interest on a Promissory Note filed as late as on 3.11.2007,<\/p>\n
      his address is shown to be at Banganga, Walkeshwar and<\/p>\n
      not   at   the   suit   premises.        The above Suit       is filed on
\n      25.3.2007. It can be seen from the Plaint and proceedings in
\n      the above Sum m a ry Suit that even in November 2007, 8<\/p>\n
      month s after the filing of this Suit, the Applicant was not in
\n      the suit premises.\n<\/p>\n
    22. Upon the filing of the Suit, an ad- interim Application came
\n      to be made by the Plaintiffs on 4.4.2007 in Notice of Motion
\n      No.1370 of 2007 taken out by the Plaintiffs.               An ad- interim
\n      injunction came to be granted against the Defenda nt,                       who<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:09:15 :::<\/span>
\n                                     16<\/span><\/p>\n
      was present, in terms of the stateme nt made by him that he<\/p>\n
      shall not create any third party rights in the suit premises. It
\n      is precisely after that order of injunction that the Defendant<\/p>\n
      has inducted the Applicant in the suit premises. In his
\n      Affidavit- in- reply to Notice of Motion No.1370 of 2007 filed in
\n      Ju ne 2007, the Defendan t stated about the presence of the<\/p>\n
      Applicant in the suit premises.     Thereafter on 29 th August
\n      2008 when the Plaintiffs’ initial Notice of Motion No.1370 of<\/p>\n
      2007 was heard, the Defendant’s Counsel stated to Court
\n      that no person was residing in the suit flat.\n<\/p>\n
                            ig                                   The Court
\n      Receiver was directed to take symbolic possession of the suit<\/p>\n
      flat.   Thereafter that order came to be modified upon an
\n      Application made by the Defenda nt’s        Advocate that              the
\n      stateme nt of his Counsel that no person was residing in the<\/p>\n
      suit flat was incorrectly recorded and that the Applicant and<\/p>\n
      his wife are the family friends staying in the suit flat which
\n      came to be recorded by the Court on 4.9.2008.\n<\/p>\n
    23. In Jan u a ry 2008, a criminal complaint came to be filed by
\n      the Applicant against the Defenda nt in the Metropolitan
\n      Magistrate’s Court at Girgaum, Mumbai under Sections 156<\/p>\n
      (III) and 420 of the Indian Penal Code [IPC] alleging that the
\n      Defenda nt   was trying to oust the Applicant though the
\n      Applicant paid the Defenda nt Rs.1,75,86,000 \/ – out of total
\n      consideration of Rs.6.5 Crores for the sale of the suit flat.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n                                          17<\/span><\/p>\n
    24. In March       2008, a complaint        came to be filed by the
\n      Defenda nt against the Applicant shown to be residing at<\/p>\n
      Banganga, Walkeshwar, in the Court of the Chief Additional
\n      Metropolitan Magistrate at Girgau m, Mumbai, inter alia,
\n      under Section 420 of the IPC and alleging, inter alia, that the<\/p>\n
      suit flat belonged to the trustees and that there was no
\n      question of selling the suit flat to the Applicant on receiving<\/p>\n
      consideration of Rs.1,75,86,000 \/ – alleged to have been paid
\n      entirely in cash.        It is seen from the aforesaid dates that<\/p>\n
      though the Applicant was never in possession of the suit flat<\/p>\n
      in any capacity prior to the filing of the Suit, the Defenda nt
\n      in order to scuttle his own admission of handing over vacant
\n      possession of the suit flat to the Plaintiffs as the trustees as<\/p>\n
      per his letter dated 1.11.2006 sought to file collusive Suits<\/p>\n
      and sought to put up the Applicant in the suit premises after
\n      the filing of the Suit.\n<\/p>\n
    25. It   appears    that    the   parties    fell    out    upon        whatever
\n      underst a n di ngs that they may have had.                Hence both the
\n      parties filed criminal complaint s also after filing of the Suits.\n<\/p>\n
      In view of the Defendan t having inducted the Applicant in
\n      the suit premises after the filing of the Suit and after the ad-
\n      interim order of injunction obtained by the Plaintiffs against
\n      the    Defendant     on    4.4.2007,      the     Plaintiffs     sought         the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n                                         18<\/span><\/p>\n
      appoint me nt of the Receiver and of being put in possession<\/p>\n
      as the Receiver’s agent when Notice of Motion No.1370 of
\n      2007 reached hearing. It appears that by that time the<\/p>\n
      relationship between the Defenda n t and the Applicant had
\n      come to pass.     The Defendan t, who had colluded with the
\n      applicant pending the Suit,            no longer desired to have the<\/p>\n
      Applicant in the suit premises.            The Defenda nt, who was
\n      personally present        in Court when the Notice of Motion<\/p>\n
      reached hearing on 8.10.2008, made a stateme nt to Court
\n      that he shall have the persons who are his relatives and<\/p>\n
      friends removed from the suit premises.             He also stated to<\/p>\n
      Court that if they did not vacate the suit premises, the Court
\n      Receiver may forcibly obtain possession from them.                         The
\n      Court observed that the Defenda nt abided by his statement<\/p>\n
      made on 4.4.2007 in the Notice of Motion when the initial<\/p>\n
      ad- interim order had come to be passed.                The Defendan t
\n      clarified that none other than he was entitled to reside in the
\n      suit premises.    Hence the Court Receiver was directed to<\/p>\n
      allow the Defenda nt to remain in possession of the suit
\n      premises and obtain possession from any other person who
\n      may be found in the suit premises, with Police assista nce, if<\/p>\n
      required.\n<\/p>\n
    26. The Court Receiver having proceeded to execute that order,
\n      the   Applicant   filed    this   Application    claiming        to be        in<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n                                     19<\/span><\/p>\n
     possession since prior to the Suit.        The two Suits in the<\/p>\n
     Small Causes Court show what transpired from 23.1.2007
\n     when the Applicant’s daughter (not the Applicant) claimed to<\/p>\n
     be in possession, to 8.8.2008 when the Consent Terms were
\n     filed in the second Suit in which she claimed no interest in
\n     the suit flat. The Applicant has changed his mind. He seeks<\/p>\n
     to rely upon the same documen t on which his daughter sued
\n     and settled.\n<\/p>\n
    27. The Applicant must show juridical possession in the suit<\/p>\n
     premises.      No party can be allowed to remain in possession<\/p>\n
     of the suit premises upon obtaining unlawful possession
\n     thereof.    The Applicant has sought to show his juridical
\n     possession by virtue of the aforesaid document s being 2<\/p>\n
     Licence Agreements executed by the widow of the settlor<\/p>\n
     Urmila Shah and by the Defenda nt and the declaration
\n     executed by the said widow.         None of these docume nt s can
\n     be relied upon, produced in Court or considered by the<\/p>\n
     Court to allow the Applicant to be in possession as none is
\n     admissible in evidence.     The very purpose and object of the
\n     Registration Act would be frustrated and the very object of<\/p>\n
     having such docume nt s registered would be frustrated if
\n     docume nt s such as these are allowed to be relied upon by
\n     the parties to show that the parties to the Suit have no
\n     present right to remove those parties claiming to be in<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n                                        20<\/span><\/p>\n
      “possession”.    Indeed there may be no case in which Court<\/p>\n
      Receiver could successfully obtain possession from total and
\n      rank strangers and parties inducted after the filing of the<\/p>\n
      Suit to set at naught the order of appoint me nt of Court
\n      Receiver for protection of the Plaintiffs’ property, if a party
\n      upon such docume nt s would be entitled to show the Court<\/p>\n
      his “possession”.\n<\/p>\n
    28. Whatever be the collusive Suits filed between the parties
\n      whilst they were thick friends and whatever be the frivolous<\/p>\n
      complaints made against one another once their relations hip<\/p>\n
      soured, the independe nt legal proceeding by the Applicant
\n      himself in this Court being Summ a ry Suit No.3501 of 2007
\n      would clinchingly show the claim of possession                       of the<\/p>\n
      Applicant herein.    In that independen t proceeding filed 8<\/p>\n
      month s after the filing of this Suit, the Applicant himself has
\n      shown his address to be at Banganga, Walkeshwar. That
\n      seals his fate. The possession claimed by the Applicant is<\/p>\n
      neither lawful, nor juridical.        The Applicant was also not in
\n      any actual possession as on the date of the Suit. The
\n      Applicant has been inducted in the suit premises after the<\/p>\n
      filing of the Suit and after the initial ad- interim order came
\n      to be passed on 4.4.2007 and in fact later than November
\n      2007 by executing anti document s. Though the infamous
\n      idea of defrauding the Plaintiffs may have occurred to the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n                                          21<\/span><\/p>\n
      Defenda nt prior to the filing of the Suit and after he himself<\/p>\n
      agreed to vacate the suit premises to have caused                             the
\n      Applicant’s daughter to file the collusive Suit against him on<\/p>\n
      23.1.2007 being L.C. Suit No.47 of 2007, which he settled
\n      with her a mere 3 month s thereafter, there have been no
\n      proceedings      between   the     Defenda nt      and     the     Applicant<\/p>\n
      himself and      no documen t s         produced    by the         Applicant
\n      himself to satisfy the Court about his lawful possession in<\/p>\n
      the suit premises. Even the very first docume n t, anti- dated
\n      and fabricated as it is, relied upon by the Applicant is not in<\/p>\n
      his favour but in favour of his daughter.\n<\/p>\n
    29. It is of some importa nce to note that though the Applicant
\n      claims to have been in possession of the suit premises since<\/p>\n
      as early as in February 2001 during the lifetime of the<\/p>\n
      deceased     Urmila   Shah       herself,   the    Applicant         has      not
\n      produced absolutely any documen t a ry evidence by way of
\n      public docume n t s    to evince his possession                in the suit<\/p>\n
      premises for as long as 6 years prior to the filing of the Suit.\n<\/p>\n
    30. The Application is dishonest and mischievous.\n<\/p>\n
    31. The Notice of Motion is dismissed with costs, fixed at
\n      Rs.5,000 \/ – .\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n            22<\/span><\/p>\n
                [SMT.ROSHAN DALVI, J.]<\/p>\n
                      ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>
\n            23<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 14:09:16 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court H.K. Taneja & Ors vs Mr.Kezer Kharawala I\/By M\/S.R.K. … on 17 December, 2008 Bench: R. S. Dalvi, R. S. Dalvi 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.________of 200 8 IN Suit No.1094 of 2007 H.K. Taneja & ors. .. .. Plaintiffs […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-48755","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nH.K. 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