2024:BHC-OS:21197-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.151 OF 2018 IN APPEAL NO.289 OF 2015 IN SUIT NO.353 OF 2009

1. Nusli N. Wadia ] 2. Maureen N. Wadia ] 3. Rajesh Batra ]

In their capacity as Trustees of F.E. ] Dinshaw Trust having their Office at ] 412, Churchgate Chambers 5, ] Sir Vithaldas Thackersey Marg, ]

Mumbai – 400 020. ] … Applicants/

Org. Appellants In the matter between

1. Nusli N. Wadia ] 2. Maureen N. Wadia ]

3. Rakesh Batra In their capacity as Trustees of ] F.E. Dinshaw Trust having their Office ] at 412, Churchgate Chambers 5, ] Sir Vithaldas Thackersey Marg, ]

Mumbai – 400 020. ] … Appellants Org. Defendants V/s.

Bastion Constructions ] A Partnership firm having its ] Registered office at B/11, Yuwan ] Apartment, Mount Mary Road, ]

Bandra (West), Mumbai – 400 050. ] …..Respondent WITH ASHWINI H NOTICE OF MOTION NO.34 OF 2019 GAJAKOSH IN Digitally signed by ASHWINI H APPEAL NO.289 OF 2015 GAJAKOSH Date: 2024.12.20 IN SUIT NO.353 OF 2009 Bastion Constructions ] A Partnership firm having its ] Registered office at B/11, Yuwan ] Apartment, Mount Mary Road, ]

Bandra (West), Mumbai – 400 050. ] …..Applicant (Respondent)

In the matter between

1. Nusli N. Wadia ] 2. Maureen N. Wadia ] 3. Rajesh Batra ]

In their capacity as Trustees of F.E. ] Dinshaw Trust having their Office at ] 412, Churchgate Chambers 5, ] sir Vithaldas Thackersey Marg, ]

Mumbai – 400 020. ] … Appellants/

Org. Defendants V/s.

Bastion Constructions ] A Partnership firm having its ] Registered office at B/11, Yuwan ] Apartment, Mount Mary Road, ]

Bandra (West), Mumbai – 400 050. ] …..Respondent (Org. Plaintiff)

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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 Appellant.

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. for Respondent.

Mr. S.K. Dhekale, Court Receiver, Bombay High Court, present.

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CORAM : A. S. GADKARI AND KAMAL KHATA, JJ.

RESERVED ON : 10^th December 2024.

PRONOUNCED ON : 20th December 2024.

ORDER (Per : 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 31^st 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, the conclusion that “the Plaintiff was put in effective control and possession of the suit properties and continues to be so ever since” would likely have been different.

2.1) He categorically asserted that, this application falls under Order 41 Rule 27(1)(aa). He therefore, contends that the Court has two options: i) to hear the Chamber Summons and decide whether the matter should be remanded to the Trial C