Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 67/18 in L.C.Su. No.4881/10
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.67 OF 2018
IN
L.C.SUIT NO.4881 OF 2010
Raheja CrestIII Coop. Hsg. Soc. Ltd. Plaintiff.
V/s.
1. Classic Developers
2. Raheja CrestI Coop. Hsg. Soc. Ltd.
3. Raheja CrestII Coop. Hsg. Soc. Ltd.
4. Sabita R. Narang
5. Municipal Corporation for Greater Mumbai. Defendants.
Advocate Mr. Khopade h/f Adv. Thorat for /Deft. No.1.
Advocate J.K. Shah for Plaintiff.
Advocate Ms. Kamble for Deft. No.5/BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 11th JUNE, 2018
ORAL ORDER
The present notice of motion is taken out by defendant
no.1 for condoning the delay of 377 days for filing written statement
and allow them to file written statement on record.
2. The defendant no.1 submits that the plaintiffs have filed
Suit No.3284/10 before Hon'ble High Court for injuction and other
interim reliefs, in which defendant no.1 has filed application under
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Section 9A of Code of Civil Procedure (hereinafter referred to as CPC
for short) as the suit was barred by limitation. During pendency of said
application the suit is transferred before this Court and renumbered.
The application filed by defendant no.1 for deciding preliminary issue
vide NM No.749/12 disposed of by this Court on 19.10.2019 on the
ground that there was mixed question of law and facts and hence, it
could not be decided as preliminary issue under Section 9A of CPC. The
defendant no.1 preferred an appeal against said order which is No. (L)
53/17 before Hon'ble High Court. Thereafter during the pendency of
suit while finalizing written statement, it is realized that the Classic
Developer, against whom the plaintiffs have filed above suit, had ceased
to exist and filing of the written statement showing Classic Developers
as Defendant no.1 would be improper. Therefore, defendant no.1
without amendment of the cause title unable to file its written
statement. The defendant no.1 took Chamber Summons No. 61/17 for
amendment of the plaint on 05.10.2017. At the time of hearing of said
chamber summons the Court has observed that it was filed by the
plaintiffs to seek amendment to the plaint of suit and defendant cannot
be seek the amendment in the plaint. Therefore, defendant no.1 not
pressed said chamber summons and informed the advocate for the
plaintiff by their letter dated 19.10.2017 to amend the plaint. By the
order dated 05.10.2017 the Court adjourned the above suit on
28.11.2017 for No WS Order against defendants and also advised
defendant no.1 to file written statement in the above suit by way of
abundant caution. The notice of motion no.749/12 of the defendant
no.1 was dismissed by this Court on 19.10.2016 and adjourned the
matter on 17.11.2016 for filing written statement. The court passed No
WS order against the defendant no.4. As there is delay of 377 days in
filing the written statement, defendant no.1 has got a good chance of
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succeeding in the matter on merits. Therefore, they prayed to allow
their notice of motion in terms of prayer clause a, b and c of present
notice of motion.
3. Notice of the present notice of motion issued to plaintiffs.
They filed their say, thereby strongly objected present notice of motion
on the ground that the present notice of motion is nothing but abuse
and misuse of process of Law. There is gross delay for filing notice of
motion, which is barred by limitation. There is delay of more than 7
years in filing written statement which defendant no.1 has not
explained. Hence, prayed to reject the notice of motion.
4. Heard the Ld. Counsel Mr. Thorat for defendant no.1 and
advocate J.K. Shah for Plaintiff.
After perusal of record it is observed that earlier the said
suit was filed before Hon'ble High Court, which is transferred before
this Court in the year 2010 and renumbered. It is admitted fact that the
notice of motion no.749/12 filed by defendant no.1 under Section 9A of
CPC, thereby raised limitation point as a preliminary issue, which after
hearing of both the parties, said notice of motion was dismissed by this
Court on 19.10.2016. Thereafter defendants moved the chamber
summons but said chamber summons not pressed by defendant no.1 on
05.10.2017 and then adjourned the matter on 28.11.2017 for passing
No WS Order against defendants. Before that the said matter never kept
for filing the Written statement. On 28.11.2017 defendant no.1 filed
notice of motion. From the record it is observed that as the notice of
motion on the point of preliminary issue was pending before the Court,
therefore, defendants have not filed their written statement on record
and their limitation period started from the date of disposal of said
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notice of motion. For adjudication of the present suit it is necessary to
give opportunity to defendant no.1 to file their written statement on
record. Considering the said fact, in the interest of justice by imposing
costs the defendant has liberty to file their written statement on record.
In the circumstances, I pass following order :
ORDER
1. Notice of Motion No.67 of 2018 is allowed.
2. The delay if any for filing the written statement, is
condoned, subject to cost of Rs.10,000/ to be paid to plaintiff.
3. The defendant no.1 is directed to file their written
statement on or before next date.
4. NM is disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 11/06/2018.
Dictated on : 11/06/2018
Transcribed on : 12/06/2018
Signed on : 14/06/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14/06/2018 At 4.57 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
11/06/2018
Judgment/Order signed by P.O. on 14/06/2018
Judgment/Order uploaded on 14/06/2018
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