1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.945 OF 1991 IN SUIT NO.1423 OF 1984 M/s.Atul Development Corporation .. Plaintiff Versus Bhagwandas Gordhandas Kapadia and Ors. .. Defendants Mr.S.U.Kamdar, Senior Advocate i/b. Mahimtura & Co. for plaintiffs. Mr.Zal Andhyarujina i/b.M.Hiralal & Co. for defendant Nos. 7 to 18 and 26 CORAM : S.C.DHARMADHIKARI, J. DATE : 11th February 2009. P.C. . The matter was placed for directions as it is not disputed by both sides that oral evidence will have to be recorded. Therefore, the matter was placed for directions with regard to admission and denial of documents. Mr.Kamdar, learned Senior Counsel invited my attention to 2 the letter dated 5th January 2009 addressed by the Advocate for defendants to plaintiffs’ Attorneys, setting out therein seriatim the documents which are relied upon by the plaintiff and existence of which and/or contents thereof are admitted/ denied. 2. Mr.Makhija, learned Counsel appearing for defendants states that those of the documents where existence is admitted, can be marked as Exhibits. 3. Accordingly, documents at serial Nos.1, 3 to 7, 11, 13 to 23 and 24 to 26 are admitted. 4. As far as document at Serial No.2 is concerned, i.e. the plan regarding which plaintiffs’ witness has deposed in chief, Mr.Makhija states that the plan may have been produced but there are several issues which arise. Therefore, reserving the right of the 3 defendants to cross examine the witness with regard to the contents and the dimensions/ specifications/ boundary with regard to the properties and structures enlisted therein, these documents can be exhibited. Accordingly the plan at Serial No.2 is exhibited, subject to the right of the defendants to cross examine the witness. 5. As far as documents at serial Nos.8 to 10 are concerned, the witness has produced them along with affidavit in chief. These documents are also exhibited subject to the right of defendants to cross examine the witness with regard to the contents thereof. 6. Documents at serial No.12 is original letter of possession regarding which the witness has stated in para 11 in chief. Defendants’ Counsel states that defendants are not parties to these documents. However, reserving the rights of the defendants to cross examine the witness 4 with regard to the contents of the same so also without in any manner giving up the plea that the signatories to these documents must also be produced as witnesses, the same can be exhibited. They are accordingly, exhibited. 7. Needless to state that the above documents so also all others in the letter dated 5th January 2009 being exhibited does not mean that defendants’ right to cross examine the witness on the contents thereof is in any way at this stage affected. Subject to these rights being reserved and protected, these documents are exhibited. 8. Mr.Kamdar, learned Senior Counsel states that as far as document which is enlisted at serial No.11 of the letter dated 5th January 2009, the plaintiffs’ attorneys have applied for issuance of certified true copies thereof and as and when the same are made available, they would 5 be produced. 9. As far as defendant’s affidavit of documents are concerned, reliance is placed by Mr.Makhija on the letter dated 8th December 2008 addressed by plaintiffs’ Advocate to defendant’s Advocate. 10. Documents enlisted in the second schedule of this letter at serial Nos.2 to 5 are exhibited subject to plaintiffs’ right to cross examine the witness. 11. As far as documents enlisted in the first schedule and serial No.1 of the second schedule, Mr.Makhija states that he would adopt appropriate proceedings. Mr.Makhija states that he would file affidavit of evidence and prove the documents in accordance with law. 12. S.O. 17th March 2009 for recording 6 evidence. Both letters are taken on record. (S.C.Dharmadhikari, J)