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.696 OF 2007 MOTION NO.696 OF 2007 MOTION NO.696 OF 2007 IN IN IN SUIT SUIT SUIT NO.2429 NO.2429 NO.2429 OF 1997 OF 1997 OF 1997 Naina Naina Naina Deepak Kamani Deepak Kamani Deepak Kamani ...... Plaintiff Plaintiff Plaintiff vs vs vs Janson Janson Janson Engineering & Trading P.Ltd & or Engineering & Trading P.Ltd & or Engineering & Trading P.Ltd & ors.Defendants Defendants Defendants The The The Court Receiver Court Receiver Court Receiver Mrs Mrs Mrs Pushpa Kadambande Pushpa Kadambande Pushpa Kadambande ...... Respondents Respondents Respondents Ms.Sheetal Ms.Sheetal Ms.Sheetal Kumar with Ms M.M.Patel i/b H.H.Patel Kumar with Ms M.M.Patel i/b H.H.Patel Kumar with Ms M.M.Patel i/b H.H.Patel for for for Plaintiff Plaintiff Plaintiff Mr.J.S.Chandanani Mr.J.S.Chandanani Mr.J.S.Chandanani for Defendant No.7 for Defendant No.7 for Defendant No.7 Ms.Bina Ms.Bina Ms.Bina Pai, Mr.R.V.Pai i/b Mr.R.V.Kocharekar for Pai, Mr.R.V.Pai i/b Mr.R.V.Kocharekar for Pai, Mr.R.V.Pai i/b Mr.R.V.Kocharekar for Respondent Respondent Respondent no.2 no.2 no.2 CORAM CORAM CORAM : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J DATE DATE DATE : 28th March, 2007 : 28th March, 2007 : 28th March, 2007 P.C. P.C. P.C. 1.1.1. This motion is ill-advised for more than one This motion is ill-advised for more than one This motion is ill-advised for more than one reason. reason. reason. In the first place, grievance that the In the first place, grievance that the In the first place, grievance that the order order order passed by this Court on 7th February, 2000 passed by this Court on 7th February, 2000 passed by this Court on 7th February, 2000 was was was on on on account of the fraud played by the plaintiff account of the fraud played by the plaintiff account of the fraud played by the plaintiff on on on this court, it does not command to me. In any this court, it does not command to me. In any this court, it does not command to me. In any case case case this this this grievance grievance grievance cannot be heard at the instance cannot be heard at the instance cannot be heard at the instance of of of defendant no.7, who participated defendant no.7, who participated defendant no.7, who participated in the earlier in the earlier in the earlier proceedings. proceedings. proceedings. 2.2.2. Be that as it may, the necessity of considering Be that as it may, the necessity of considering Be that as it may, the necessity of considering the the the claim of respondent no. 2, who was not before claim of respondent no. 2, who was not before claim of respondent no. 2, who was not before the the the Court when earlier order was passed, was Court when earlier order was passed, was Court when earlier order was passed, was considered considered considered right up to the apex court. The right up to the apex court. The right up to the apex court. The respondent respondent respondent no. 2 herself filed S.L.P.before the no. 2 herself filed S.L.P.before the no. 2 herself filed S.L.P.before the 2 apex apex apex Court being S.L.P.(Civil) No.3967 of 2001 Court being S.L.P.(Civil) No.3967 of 2001 Court being S.L.P.(Civil) No.3967 of 2001 which which which has been disposed of by order dated 29th has been disposed of by order dated 29th has been disposed of by order dated 29th July, July, July, 2002. The argument that the order dated 7th 2002. The argument that the order dated 7th 2002. The argument that the order dated 7th February, February, February, 2000 2000 2000 be set aside on account of the fraud be set aside on account of the fraud be set aside on account of the fraud played played played by the plaintiff by non disclosure of the by the plaintiff by non disclosure of the by the plaintiff by non disclosure of the interest interest interest of the respondent no.2, therefore will of the respondent no.2, therefore will of the respondent no.2, therefore will have have have to be stated to be rejected. to be stated to be rejected. to be stated to be rejected. 3.3.3. I see no propriety for entertaining this motion I see no propriety for entertaining this motion I see no propriety for entertaining this motion atatat the instance of the defendant no.7. the instance of the defendant no.7. the instance of the defendant no.7. 4.4.4. All questions on merits on the maintainability All questions on merits on the maintainability All questions on merits on the maintainability of of of the suit will be decided at the appropriate the suit will be decided at the appropriate the suit will be decided at the appropriate stage. stage. stage. 5.5.5. It is made clear that if any further It is made clear that if any further It is made clear that if any further application application application is moved at the instance of the is moved at the instance of the is moved at the instance of the defendant defendant defendant no. 7, on such unstatable plea in no. 7, on such unstatable plea in no. 7, on such unstatable plea in future, future, future, the Court may consider of imposing the Court may consider of imposing the Court may consider of imposing exemplary exemplary exemplary costs as may be warranted at the relevant costs as may be warranted at the relevant costs as may be warranted at the relevant time. time. time. (A.M.Khanwilkar, (A.M.Khanwilkar, (A.M.Khanwilkar, J) J) J)