1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4158 OF 2006 IN SUIT NO.1258 OF 1995 Dr. Edna Fernandes & Anr. ..PLAINTIFF VS. Titus M. Fernandes & ors. ..DEFENDANTS Mr.M.S.Oberai i/b E.A. Gonsalves for the Plaintiff Mr N.J.D'monte for the Defendants CORAM: Smt. ROSHAN DALVI, J. DATED : 8th APRIL, 2009 P.C.: 1. This Notice of Motion is taken out by the Senior Citizen for expediting the suit and for a time bound schedule for its hearing. The Notice of Motion is expedited. The written statements of Defendant No.1 as well as Defendant No.2 are filed. Defendant No.3 is a formal Defendant. Plaintiff No.1 is the mother of Plaintiff No.2 and Defendant No.3. Defendant No.1 has expired. His wife was brought on record as 2 Defendant No.1(a). Defendant No.1(a) has also expired. She has not left behind any heirs. The suit, therefore, does not survive against Defendant No.1. The Plaintiff's claim will survive against Defendant No.2 who is a builder. He is the real contestant. Relationship between the parties is admitted, execution of the transaction which is sought to be cancelled is also admitted, Defendant No.2 has essentially claimed to be a bonafide purchaser for value paid to Original Defendant No.1, who is stated to be a 50% owner of the property. He is stated to have acted under the Power of Attorney executed by Plaintiff No.1 in his favour. Mr. D' Monte states that he has the power of attorney in his possession. Issues 1. Whether Defendant No.1 is a bonafide purchaser of the suit property belonging to Plaintiff No.1 and Defendant No.1 for consideration. 2. Whether Defendant No.2 acted upon the power of attorney executed by the Plaintiffs in favour of Defendant No.1 3. Whether the amounts paid by Defendant No.2 have 3 been credited by the original Defendant No.1 in the joint account of Defendant No.1 & Plaintiff No.1 in Bank of India, Hill Road Branch, Brandra (W), Mumbai. 4. Whether the Plaintiffs prove that Plaintiff No.1 had not executed any power of attorney in favour of Defendant No.1 5. Whether the Plaintiff No.1 terminated and cancelled the power of attorney dated 21.01.1994 executed by her in favour of Defendant No.1 by her letter dated 11.02.1995. 6. Whether the termination of the power of attorney was binding upon Defendant No.1 as well as Defendant No.2. 7. What relief, if any, are the Plaintiffs entitled to ? 2. The Plaintiffs shall file their Affidavit in Examination in Chief within two weeks. The suit is adjourned to 04.05.2009 for further directions. Notice of Motion disposed of accordingly. 4 (Smt. Roshan Dalvi, J)