1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.702 OF 2006 MOTION NO.702 OF 2006 MOTION NO.702 OF 2006 inin in SUIT SUIT SUIT NO.3049 NO.3049 NO.3049 OF 2003 OF 2003 OF 2003 M/s M/s M/s Ishwara Ishwara Ishwara Enclave Coop Hsg Scty.. Plaintiff Enclave Coop Hsg Scty.. Plaintiff Enclave Coop Hsg Scty.. Plaintiff vs vs vs M/s M/s M/s Nikhileshwara Buildcon Pvt.Ltd & ors.Defendants Nikhileshwara Buildcon Pvt.Ltd & ors.Defendants Nikhileshwara Buildcon Pvt.Ltd & ors.Defendants & Pankaj Pankaj Pankaj Choubisa & ors .. Choubisa & ors .. Choubisa & ors .. Respondents Respondents Respondents Mr.Rishab Mr.Rishab Mr.Rishab Shah i/b Pranita Mhatre of M/s Shaunak Shah i/b Pranita Mhatre of M/s Shaunak Shah i/b Pranita Mhatre of M/s Shaunak Satpute Satpute Satpute & Co for Plaintiff & Co for Plaintiff & Co for Plaintiff Mr.H.Rahma Mr.H.Rahma Mr.H.Rahma i.b D.H.Law Associates for i.b D.H.Law Associates for i.b D.H.Law Associates for Defendant Defendant Defendant no.4 no.4 no.4 Mr.J.S.Chandanani Mr.J.S.Chandanani Mr.J.S.Chandanani for Defendant no.3 for Defendant no.3 for Defendant no.3 inin in support of N/M No.702 of 2006 support of N/M No.702 of 2006 support of N/M No.702 of 2006 Mr.Harish Mr.Harish Mr.Harish Pandya i/b Ms Sujata Patil for Respts Pandya i/b Ms Sujata Patil for Respts Pandya i/b Ms Sujata Patil for Respts CORAM CORAM CORAM : S.J.Vazifdar, J : S.J.Vazifdar, J : S.J.Vazifdar, J DATED DATED DATED : 25th February, 2008 : 25th February, 2008 : 25th February, 2008 P.C. P.C. P.C. 1.1.1. The defendant nos. 1 and 2 have filed this The defendant nos. 1 and 2 have filed this The defendant nos. 1 and 2 have filed this Notice Notice Notice of Motion seeking an order directing the of Motion seeking an order directing the of Motion seeking an order directing the Prothonotary Prothonotary Prothonotary and Senior Master of this Court to and Senior Master of this Court to and Senior Master of this Court to lodge lodge lodge a complaint against the respondents under a complaint against the respondents under a complaint against the respondents under sections sections sections 177 and 182 of the Indian Penal Code. 177 and 182 of the Indian Penal Code. 177 and 182 of the Indian Penal Code. 2.2.2. The defendant nos. 1 and 2 contend that The defendant nos. 1 and 2 contend that The defendant nos. 1 and 2 contend that various various various statements were made across the bar at the statements were made across the bar at the statements were made across the bar at the hearing hearing hearing of the Notice of Motion No.2866 of 2003. of the Notice of Motion No.2866 of 2003. of the Notice of Motion No.2866 of 2003. They They They stated that the same is evident from the order stated that the same is evident from the order stated that the same is evident from the order dated dated dated 22nd October, 2003 passed by the learned 22nd October, 2003 passed by the learned 22nd October, 2003 passed by the learned Single Single Single Judge. Judge. Judge. 3.3.3. It was contended that the plaintiffs had It was contended that the plaintiffs had It was contended that the plaintiffs had 2 wrongly wrongly wrongly alleged that the defendants were alleged that the defendants were alleged that the defendants were constructing constructing constructing and selling the lift room on the top and selling the lift room on the top and selling the lift room on the top of of of the the the building and covering the portion marked for building and covering the portion marked for building and covering the portion marked for stilt stilt stilt parking parking parking with walls and selling the same. and with walls and selling the same. and with walls and selling the same. and that that that the plaintiffs had not yet handed over the the plaintiffs had not yet handed over the the plaintiffs had not yet handed over the possession possession possession to all the flat purchasers. to all the flat purchasers. to all the flat purchasers. 4.4.4. It was further contended that the falsity of It was further contended that the falsity of It was further contended that the falsity of these these these statements is evident from the order and the statements is evident from the order and the statements is evident from the order and the report report report of the Commissioner appointed by the said of the Commissioner appointed by the said of the Commissioner appointed by the said order. order. order. 5.5.5. From the report of the Commissioner, it is not From the report of the Commissioner, it is not From the report of the Commissioner, it is not possible possible possible to to to establish that the aforesaid statements establish that the aforesaid statements establish that the aforesaid statements were were were false. In fact, all that it suggests is that false. In fact, all that it suggests is that false. In fact, all that it suggests is that atatat the time of the Commissioner’s visit, that was the time of the Commissioner’s visit, that was the time of the Commissioner’s visit, that was the the the position. Whether the statements are false or position. Whether the statements are false or position. Whether the statements are false or not not not will have to await trial. will have to await trial. will have to await trial. 6.6.6. Thereafter, it would always be open to the Thereafter, it would always be open to the Thereafter, it would always be open to the Court Court Court to initiate action if the statements are to initiate action if the statements are to initiate action if the statements are found found found to be false. to be false. to be false. 7.7.7. With the above clarification, Notice of Motion With the above clarification, Notice of Motion With the above clarification, Notice of Motion isisis dismissed. dismissed. dismissed.