Nusli N. Wadia VS Bastion Constructions

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

A. S. GADKARI, KAMAL KHATA
Nusli N. Wadia – Appellant
Versus
Bastion Constructions – Respondent

Advocates Appeared:
For the Appellants :Mr. Navroz Seervai, Senior Advocate, a/w Mr. Yash Momaya, Ms. Rujuta Patil, Mr. Yahaan Shah, Adv. Hasan Mushabber, Mr. Masira Lulania, i/by Negandhi Shah and Himayatullah.
For the Respondents:Mr. P. Chidambaram, Senior Advocate, a/w Mr. Vineet Naik, Senior Advocate, Mr. Mayur Khandeparkar, Mr. Bhushan Deshmukh, Mr. Dhawal Mehta, Ms. Jasmine Sheth Kachalia, Ms. Tanvi Shah, Mr. Aryan Shrivastava and Ms. Shubhada Khandekar, i/by Wadia Ghandhy and Co., Mr. S.K. Dhekale, Court Receiver, Bombay High Court, present.

ORDER :

(Kamal Khata, J) :

1) By this Chamber Summons, filed under the provisions of Order 41 Rule 27 read with Order 43 Rule 2 of the Code of Civil Procedure 1908 (CPC), the original Appellant seeks the following relief:

“(a) That this Hon'ble Court be pleased to permit the Appellants to produce the additional evidence viz. a certified copy of the Agreement of Joint Development dated 31st December 2005 details whereof is given in the schedule to the above Chamber Summons and/or that the said additional evidence be taken on the record of the above proceedings.”

2) Mr. Navroz Seervai, learned Senior Counsel representing the Applicants/Original Appellant (“Wadia”), submitted that Wadia seeks to introduce the Joint Development Agreement dated 31 st December 2005 (“ JDA”) as additional evidence, which, despite exercising due diligence, could not be produced before the Trial Court. He argued that, had the trial Court considered the JDA, it might have reached a different conclusion regarding issue no 5, which read as follows:

“5. Whether the Plaintiff proves that they have taken effective control and possession of the suit properties as alleged in paragraph 14 of the plaint?

He emphasized that