Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.81/2020
MHCC010001982020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.81 OF 2020
IN
S. C. SUIT NO.3318 OF 2012 (DISPOSED OF)
(CNR NO.MHCC01-005751-2011)
ICICI Bank )...Applicant
In the matter :
ICICI Bank )...Plaintiff
Versus
Harshali Enterprises )...Defendant
Appearances :-
Learned Adv. Mandira Dey for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 17/06/2023.
ORDER
1 Heard learned advocate for plaintiff.
2 This notice of motion is taken out for restoration of suit
which is dismissed in default on 20/09/2019. It is the contention of the
plaintiff that the plaintiff bank has filed the suit against the defendant
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for recovery of loan amount of Rs.5,95,279/- (Rupees Five Lakhs
Ninety-Five Thousand Two Hundred and Seventy-Nine only).
Accordingly, writ of summons to the defendant was served, but it failed
to appear, hence, matter proceeded ex-parte against the defendant vide
roznama dated 27/03/2014. Thereafter, matter was fixed for evidence.
Plaintiff has tendered original documents and affidavit of examination-
in-chief of its authorised person. The authorised person of plaintiff
remained absent and failed to appear in the witness box to prove the
documents and hence, as per roznama dated 20/09/2019, suit came to
dismissed. It is the contention of the plaintiff bank that the authorised
person was in personal difficulty to appear, therefore, he failed to
appear. As public fund is involved in this case, the defendant has
availed loan facility and avoided to repay, the plaintiff prayed for
restoration of suit to its original stage.
3 The notice of this notice of motion is issued to the
defendant, but the postal envelope was returned with an endorsement
“Left”. The plaintiff bank has the address of the defendant as per the
application tendered by the defendant while applying for loan. Thus,
the address given by the plaintiff is correct and admitted to be served to
the last known address of the defendant, but the defendant has changed
the address, therefore, it deserves to be presumed as proper service.
Thus, it appears that the defendant has deliberately avoided to appear
before the Court.
4 So far as the reason mentioned for absence is concerned,
the plaintiff is a nationalised bank, the public fund is used for running
the banking business of the plaintiff. The omission on the part of the
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authorised person should not be the reason to grant escape to the
defendant from its liability to repay the loan, hence, I am of the view
that a fair chance deserves to be given to the plaintiff bank to proceed
with the matter. Hence, notice of motion deserves to be allowed.
Consequently, I proceed to pass the following order :-
ORDER
1. Notice of Motion No.81/2020 in S. C. Suit
No.3318/2012 (disposed of), is hereby allowed.
2. The order dated 20/09/2019, stands set aside and suit
is restored to its original stage.
3. Suit be fixed on 08/08/2023.
4. Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 17/06/2023 C.R. No.15
Dictated on : 17/06/2023
Transcribed on : 19/06/2023
Draft corrected on : 19/06/2023
Signed on : 19/06/2023
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“Certified to be true and correct copy of the original signed order”.
19/06/2023
at about 04.10 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 17/06/2023
Order signed by Hon'ble Judge on : 19/06/2023
Order uploaded on : 19/06/2023
at about 04.10 p.m.
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