ROHIT A. KAPADIA Vs. PERVIZ J. MODI

JUDGEMENT

(1.) The Plaintiffs have filed the above suit against the Defendant for a declaration that the concluded contract in terms of the unsigned MOU being ExhibitO to the Plaint, arrived at between the Plaintiffs and the Defendant is valid, subsisting and binding on the Defendant and the Defendant be ordered and decreed to specifically perform the said concluded contract and for the said purpose to do all acts, deeds and things and execute all necessary documents, papers, applications, etc.

(2.) In September 2006, the Defendant took out Notice of Motion No. 3818 of 2006 to condone the delay of 465 days in filing the written statement. By an order dated 31st March 2008, the said Notice of Motion was allowed by this Court (Coram: S.C. Dharmadhikari, J.) and the written statement dated 28th September 2006 was taken on record.

(3.) From the roznama it appears that after the written statement dated 28th September 2006 was taken on record, the suit came up on Board only on 13th February 2012, when issues were framed in the above suit; the Plaintiffs were directed to file their affidavit of evidence, affidavit of documents along with compilation of documents on or before 27th February 2012; the Defendant was directed to file her affidavit of documents along with compilation of documents on or before 27th February 2012 and the matter was adjourned to 5th October 2012 for admission and denial of documents. On 5th March 2012, the documents submitted on behalf of the Plaintiffs were marked and on 20th April 2012, the Plaintiff No.1 was crossexamined by the Advocate appearing for the Defendant. In the meantime, on 31st March 2012, 8 documents were tendered on behalf of the Defendant which were marked as Exhibits/for identification. The crossexamination of the Defendant was fixed on 27th April 2012. On that day, the Defendant was ready with the affidavit of evidence. The Learned Senior Advocate appearing for the Plaintiffs objected to the contents contained in paragraphs 7 and 8 of the affidavit of evidence on the ground that the same were not found in the written statement of the Defendant. The Learned Senior Advocate appearing for the Defendant submitted that the necessary averments to the effect (a) that the Plaintiffs are not entitled for a decree of specific performance and (b) that granting of reliefs as prayed for by the Plaintiffs will cause harm, loss or injury to the Defendant, are already made in the written statement by the Defendant. The Learned Senior Advocate further submitted that the facts contained in paragraphs 7 and 8 have surfaced very recently i.e. in the meeting held by the Defendant and her husband (who are very elderly persons) with their Advocates for preparation of the affidavit of evidence, and have accordingly been incorporated in the affidavit of evidence in support of the aforesaid averments. This Court was prima facie of the view that the objection raised on behalf of the Plaintiffs may be tenable and therefore the learned Senior Advocate appearing for the Defendant could consider the possibility of incorporating the contents of paragraphs 7 and 8 through an amendment to the written statement.