ZULFIKAR M. KAGAWALAVsRAJESH SARAIYA AND ANR

Date: 15-01-2018
Business: Parties and Advocates absent.
Adjourned to 27.02.2018.
Next Purpose: FOR___________________
Next Hearing Date: 27-02-2018

Date: 27-02-2018
Business: Ms. Shiny Roy, I/b. Mr. Viraj S. Kandpile, Advocate for Plaintiff present.  None for Defendant.  Ms. Roy prays for issuance of Warrant of Attachment u/o. XXI r. 43 and 54 of CPC against Judgment Debtor, without issuing notice u/o. XXI r. 22 of CPC, as the Execution Application is filed within 2 years from the Decree.  Advocate for Plaintiff further states that the Decreetal amount will not be realised unless Warrant of Attachment for both, movable and immovable property u/o. XXI r. 43 and 54 of CPC, are issued.   Hence, upon perusing the Affidavit, issue Warrant of Attachment u/o. XXI. r. 43 and 54 of CPC as prayed, returnable on 18/06/2018.
Next Purpose: FOR___________________
Next Hearing Date: 18-06-2018

Date: 18-06-2018
Business: Ms. Shiny Roy I/b Viraj Suresh Kandpile, Advocate for Plaintiff, present.  Affidavit-cum-application for amendment in Execution Application and for issue of warrants on amended address, tendered by Ms. Roy is t.o.r. and marked as Exh.6.  Application allowed, with consequential amendment in the warrants of attachment.  Returnable dates of warrants are extended till next date i.e. 27/07/2018.
Next Purpose: FOR___________________
Next Hearing Date: 27-07-2018

Date: 27-07-2018
Business: Mr. Aaditya Raktade, Advocate for Plaintiff No.1(a), Present.  Mr. Raktade tendered fresh vakalatnama of Vikas R. Kolekar, for Plaintiff No.1(a) with the no objection endorsed thereon, by the earlier Advocate Shri Viraj S. Kandpile, same is t.o.r. and marked as Exh.7. On request of Mr. Raktade, adjd to 18/08/2018.
Next Purpose: FOR___________________
Next Hearing Date: 18-08-2018

Date: 18-08-2018
Business: Plaintiff in person present.  His Advocate absent.  For inventory, adjd to 03/10/2018.
Next Purpose: FOR___________________
Next Hearing Date: 07-09-2018

Date: 07-09-2018
Business: None for D.H.
None for J.D.
Matter is adjd. to 20/11/2018 for Steps.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 20-11-2018

Date: 20-11-2018
Business: wrongly on board, hence matter adjd till next date
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 13-02-2019

Date: 13-02-2019
Business: J.D. Rajesh Saraiya present.
Advocate for J.D absent.
Adv. Mansi Jain for D.H. present.
Matter is adjd. to 12/03/2019 for Reply on  NM no.3133/18
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 12-03-2019

Date: 12-03-2019
Business: None for D.H.
Adv. C. V. Mishra for J.D. present.
Last chance is granted to file the reply on N/M.
Matter is adjd. to 12/04/2019 for N/M reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 12-04-2019

Date: 12-04-2019
Business: Adv for deft Ms.Mansi Jain present
She stated that no reply filed by plaintiff to N/M
Matter is Adjd for N/M Hearing to 17/07/2019
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-07-2019

Date: 17-07-2019
Business: Adv.Mishra for JD present.
None for DH.
Argument heard for plaintiff.
Adjd for order 23.07.2019
Next Purpose: ORDER
Next Hearing Date: 23-07-2019

Date: 23-07-2019
Business: None for DH.
None for JD.
Adjd for Steps 20/8/2019.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 20-08-2019

Date: 20-08-2019
Business: Adv. Lalit Jain for defendant/Jd
kb
At 12.50pm
Adv. Pooja Holkar for plaintiff present.
Original warrant of attachment tendered by Adv. for plaintiff.
On oral request Adjd. to 16/09/19 for steps/reply to NM of
 defendant
Next Purpose: REPLY
Next Hearing Date: 16-09-2019

Date: 16-09-2019
Business: P.O. Is on leave. Adjd to 3/10/19
Next Purpose: REPLY
Next Hearing Date: 03-10-2019

Date: 03-10-2019
Business: None present.
Adjd. to 16.12.2019 for taking steps.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 16-12-2019

Date: 16-12-2019
Business: None for plaintiff present.
Adv. Mansi Jain for defendant present.
The learned adv. Jain intimated that notice of motion relating to present matter has been fixed on 06/01/2020. hence present matter is posted to 06/01/2020
Next Purpose: REPLY
Next Hearing Date: 06-01-2020

Date: 06-01-2020
Business: None for for plaintiff present.
Adv. Mansi Jain for defendant present.
On the request of defendant matter is adjourned to 10.02.2020 for argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 10-02-2020

Date: 10-02-2020
Business: Adv Manshi Jain for JD
None for DH.
Adj to 29-04-2020 for hearing.
Next Purpose: ARGUMENTS
Next Hearing Date: 29-04-2020

Date: 29-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: ARGUMENTS
Next Hearing Date: 20-05-2020

Date: 20-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: ARGUMENTS
Next Hearing Date: 30-06-2020

Date: 30-06-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: ARGUMENTS
Next Hearing Date: 23-09-2020

Date: 23-09-2020
Business: Due to heavy rain declare holiday hence matter adjd to 26-09-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: ARGUMENTS
Next Hearing Date: 26-09-2020

Date: 26-09-2020
Business: Due to heavy rain declare holiday hence matter adjd to
Next Purpose: ARGUMENTS
Next Hearing Date: 17-12-2020

Date: 17-12-2020
Business: P.O. Is on leave
Next Purpose: ARGUMENTS
Next Hearing Date: 15-03-2021

Date: 15-03-2021
Business: Adv. Sayali Sonawane for DH present.
None for JD.
Adjd 08/07/2021 for arguments.
Next Purpose: ARGUMENTS
Next Hearing Date: 08-07-2021

Date: 08-07-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: ARGUMENTS
Next Hearing Date: 25-11-2021

Date: 25-11-2021
Business: None for DH.
Adv. C. D. Mishra for JD/defendant present.
Matter is adjd. to 06/01/2022 for arguments.
Next Purpose: ARGUMENTS
Next Hearing Date: 06-01-2022

Date: 06-01-2022
Business: None for plaintiff.
Adv. Mishra for the defendant present.
Matter is adjd. to 21/03/2022 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 21-03-2022

Date: 21-03-2022
Business: None for DH
Advocate Mr. Mishra for JD present.
Matter is adjd. for NM hearing to 10-06-2022.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-06-2022

Date: 10-06-2022
Business: None for plff.
Adv Rakhi Sakpal for deft present.
Adjd to 18/7/2022 for N/M hearing
Next Purpose: NM FOR HEARING
Next Hearing Date: 18-07-2022

Date: 18-07-2022
Business: Court is vacant.
Next Purpose: NM FOR HEARING
Next Hearing Date: 21-09-2022

Date: 21-09-2022
Business: As court is vacant
Next Purpose: NM FOR HEARING
Next Hearing Date: 25-11-2022

Date: 25-11-2022
Business: As court is vacant
Next Purpose: NM FOR HEARING
Next Hearing Date: 24-02-2023

Date: 24-02-2023
Business: As court is vacant.
Next Purpose: NM FOR HEARING
Next Hearing Date: 28-04-2023

Date: 28-04-2023
Business: As court is vacant.
Next Purpose: NM FOR HEARING
Next Hearing Date: 09-08-2023

Date: 09-08-2023
Business: None present for DH.
Adv.C.V. Mishra present for JD.
Matter stands adjourned for NM hearing on 15-09-2023.
Next Purpose: NM FOR HEARING
Next Hearing Date: 15-09-2023

Date: 15-09-2023
Business: CORAM   H.H.J. SHRI SHAIKH AKBAR SHAIKH JAFAR (CR. 15)
None present for Decree holder.
Adv. C. D. Mishra for judgment debtor present.
Matter stands adjourned to 06.11.2023 for NM hearing and filing affidavit of service.
Next Purpose: NM FOR HEARING
Next Hearing Date: 06-11-2023

Date: 06-11-2023
Business: P. O. is on leave.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-01-2024

Date: 17-01-2024
Business: None present for plaintiff.
Adv.C.D. Mishra present for defendant.
Matter stands adjourned for hearing on 21-02-2024.
Next Purpose: HEARING
Next Hearing Date: 21-02-2024

Date: 21-02-2024
Business: None present.
KB.
L.O. at 11.45 pm.
None present for Decree Holder.
Judgment Debtor Rajesh in person present.
Matter stands adjourned for hearing on 22-04-2024.
Next Purpose: HEARING
Next Hearing Date: 22-04-2024

Date: 22-04-2024
Business: None present for Decree Holder.
Adv.Archana Tiwari present for Judgment Debtor. Seeking time. Time is granted.
Matter stands adjourned for hearing on 24-07-2024.
Next Purpose: HEARING
Next Hearing Date: 24-07-2024

Date: 24-07-2024
Business: None present for Decree Holder.
Adv.Lalit Jain present for Judgment Debtor.
Matter stands adjourned for hearing on 28-08-2024.
Next Purpose: HEARING
Next Hearing Date: 28-08-2024

Date: 28-08-2024
Business: None present.
Kept back.
L.O. at 4.00 pm
None present.
Matter stands adjourned for hearing on 21-10-2024.
Next Purpose: HEARING
Next Hearing Date: 21-10-2024

Date: 21-10-2024
Business: None present.
Matter stands adjourned for hearing on 21-12-2024.
Later on at 1.20 pm.
None present for Decree Holder.
Adv. C.D. Mishra present for Judgment Debtor.
Matter is already adjourned for hearing on 21-12-2024.
Next Purpose: HEARING
Next Hearing Date: 21-12-2024

Date: 21-12-2024
Business: First Sessions P. O is on Leave.
Next Purpose: HEARING
Next Hearing Date: 17-01-2025

Date: 17-01-2025
Business: As court is vacant. Hence, matter is adjd to.
Next Purpose: HEARING
Next Hearing Date: 21-03-2025

Date: 21-03-2025
Business: As court is vacant. Hence, matter is adjd to.
Next Purpose: HEARING
Next Hearing Date: 04-05-2025

Date: 21-03-2025
Business: As court is vacant. Hence, matter is adjd to.
Next Purpose: HEARING
Next Hearing Date: 05-05-2025

Date: 05-05-2025
Business: As court is vacant. Hence, matter is adjd to.
Next Purpose: HEARING
Next Hearing Date: 21-07-2025

Date: 21-07-2025
Business: Adv. Kunal Shirgire i/b Vikas Kolekar for Decree Holder.  Seeking time. Time is granted.
Adv. Shalaka Parmar h/f Lalit Jain present for Judgment Debtor.
Matter stands adjourned to 25-08-2025 for hearing.
Next Purpose: HEARING
Next Hearing Date: 25-08-2025

Date: 25-08-2025
Business: Adv. Reshant Shah i/b Lex Conseilles  for Decree Holder No.1.
None present for defendant.
Kept back.
Later on at 12.10 pm
Adv. Reshant Shah i/b Lex Conseilles  for Decree Holder No.1, tendered VP TOR marked as Exh.02.
Matter stands adjourned to 28-10-2025 for hearing.
Next Purpose: HEARING
Next Hearing Date: 28-10-2025

Date: 28-10-2025
Business: As the presiding officer is on leave. Hence, matter is adjourned to
Next Purpose: HEARING
Next Hearing Date: 18-11-2025

Date: 18-11-2025
Business: Adv. Maithili Gala i/b Lex Couseiller present for plaintiff.
Adv. C.D. Mishra present for defendant.
kept back.
Later on at 12.35 pm.
Adv. Maithili Gala i/b Lex Couseiller present for plaintiff.
Adv. C.D. Mishra present for defendant.
Matter stands adjourned to 12-01-2026 for hearing.
Next Purpose: HEARING
Next Hearing Date: 12-01-2026

Date: 12-01-2026
Business: None present for Decree Holder.
Adv. C.D. Mishra present for Judgment Debtor.
The Notice of Motion No.6469/25 taken back on 21-11-2025 have been not returned back. If it is not returned back today deem to be disposed off.
Judgment Debtor No.1 and 2 are present.
Matter stands adjourned to  16-02-2026 for hearing.
Next Purpose: HEARING
Next Hearing Date: 16-02-2026

Date: 16-02-2026
Business: P. O. is on leave. Hence, matter is adjd to.
Next Purpose: HEARING
Next Hearing Date: 23-03-2026

Date: 23-03-2026
Business: Decree Holder and Judgment Debtor are absent.
Adv. Manan Shah i/b Lex Conseiller for Decree Holder.
Adv. C.D. Mishra present for Judgment Debtor.
Heard both sides.
Order in Notice of Motion No.3133/18
  This Notice of Motion is taken out for setting aside Ex-parte order Judgment and decree dated 22-03-2016 in summary suit No.6637/05 (old H.C. Suit No.1930/2005)in present E.A. supported by affidavit of Rajesh Saraya and Ms. Raksha Rajesh Saraya org. defendant contending that after service of writ of summons they had appointed advocate Arti Gaikwad to represent them accordingly, their advocate put their appearance by filing VP. Before the Honble Bombay High Court. Subsequently plaintiff took out Summons for Judgment by order dated 07-12-2005 Honble Bombay High Court granted unconditional leave to defend them. Subsequently the suit was transferred to the list of commercial cases with direction to defendant to file written statement within 04 weeks.
     On 04-01-2006, both the original defendants filed their written statement. Therefore, the advocate of defendant advice them that now the matter will be posted for framing of issues and thereafter will be fixed for adducing evidence.
     In the meantime plaintiff filed criminal proceedings u/s 138 of NI Act 1881 and after contesting said proceeding criminal proceedings came to be dismissed. Therefore plaintiff preferred criminal application 1756/2007 before the Honble Bombay High Court which also came to be dismissed.
     Thereafter, in August, 2011 defendant were served with the copy of Chamber Summons No. 1249/11 for bringing legal heirs of the deceased original plaintiff. Defendants changed previous advocate and appointed new advocate R. Satyanarayan who was represented in the criminal proceedings. The said Chamber Summons was disposed of on 27-09-2011.
    Ld. Advocate R. Satynarayan informed them that plaintiff would served amended copy of the plaint and thereafter matter would be fixed for R/E and ld. advocate undertook to inform them accordingly.
   The ld. Advocate undertook to inform the status of them in meanwhile in the year 2012 defendant were not feeling well and suffering several diseases and having a lots of depression, high B.P. high-per tension etc, etc, etc. Defendant No.2 was in addition to these diseases was also having depression, thyroid, sleeping problem, knee problem etc. etc. etc
   further it is contended that defendant son Umang in the month of July, 2013 was suffering from Dengue and abdomen pain and in Feb 2016 was suffering from blooding of noes and therefore X-ray to be taken.
    In the meantime on 20-07-2018 belief of the court visited residence of defendant and affixed warrant of attachment and informed that court has passed decreed them for a sum of Rs. 2000000 therefore they approached to the Advocate R. Satyanaryan who assured to check record and informed to defendant and sent a message avoiding to meet us and stop receiving phone calls of defendant hence, they collected the copies immediately on 24-03-2018 and engaged another new advocate hence, prayed to set aside Ex-parte order and decree.
     Surprisingly, the present Notice of Motion is pending since, 2018 since last 9 yrs. It is apprised by ld. Advocate for the plaintiff/ Decree Holder that on previous date that too on the direction of the court the copy of Notice of Motion was served upon them and unable to file their reply due to EID therefore I directed to ld. Advocate to file reply forthwith else Notice of Motion will proceed without reply. Despite giving chacne the ld. Advocate sought time and court is reluctant to given even one day time or one hr. time looking age of the Notice of Motion and court rightly or wrongly when the copy served on served more than 5 yrs and does not mean that Notice of Motion is going to be allowed. Therefore I have decided to dispose of Notice of Motion on its own merits treating oral objection.
    The following points arises-
1. Whether the logical, sufficient reason and cogent reason made out to condone the delay, which is not sought for setting aside Ex-parte order, Judgment and decree dated 22-03-2016
2. What order
Heard the ld. Advocate for Decree Holder.
    After considering the rival submissions. I perused the medical papers annexed with the Notice of Motion as one of the stand is that the ld. Advocate R. Satynarayan did not inform defendant about progress of the suit and secondly both the defendants and their sons Umang were having several medical problems.
    Court is very well aware of the fact that mistakes of advocate should not suffer his client as ruled by the Honble Apex  Court time and again. At the same the time I also found the force of the ld. Advocate for the plaintiff. It is not only for the advocate to inform to the client and also client to be attached to their advocate as what is the status of the their suit. So also we being living in a digital era and E-courts services accessible to all the litigants and parties it was the duty defendant and plaintiff it is the duty of the defendant if their advocate failed to inform progress of the suit to have a access of E-courts website and act like a vigilant defendant, nothing is found in the present case no reason have been assigned which is digestible to set aside Ex-parte order Judgment and decree.
    After perusal of medical papers it appears to be of Rudhira Pathological dated 08-06-2012 and 07-01-2013 of Dr. Jayesh Shah prescription dated 09-06-2012, New Miloneum Hospital dated Nil, Reliance Foundation Hospital dated 17-05-2017 showing patient asymptomatic, no sweating, discomfort which ruled out ischemic disease/ heart disease element papers of Piramal Diagnostics, medical papers of Saiffee Hospital dated 23-07-2013, Dr. Manoj R. Mshru dated 16-08-2013, Kokilaben Dhirubai Ambani Medical Research Institute dated 16-08-2013 of Ms. Raksha Saraya, SRL diagnostic, Sleep Report of Somnalogica dated 28-04-2015, Balaji Medicare of blood test etc.
     From all these documentary evidence thought their appears I dot not found any severe and king of disease which would unable to contact advocate due to medical exigency.
     So far as the non action of the advocate is concerned no papers have been tendered whether any action or notice to the advocate and it appears simply the stand is taken to see by hook or crook the Ex-parte decree that to after appointing two advocates wants to get set aside on the aforesaid reasons showing no merits at all for setting aside the Ex-aprte decree, I have no slightest hesitation that no case which sufficient, cogent has been made out set aside Ex-parte decree, hence, I noted my finding to point and proceeding following order
Reasons
1. Notice of Motion is dismissed with costs of Rs.50,000/- to be paid to State Government.
2. If the costs is not paid costs will in cause.
3. Notice of Motion is disposed off accordingly.
E.A. proceeding will proceed in accordance with the law if the positive steps are not taken deemed to be disposed off.
Matter stands adjourned to 24-03-2026 for hearing.
Next Purpose: HEARING
Next Hearing Date: 24-03-2026

Date: 24-03-2026
Business: Decree Holder and Judgment Debtor are absent.
Adv. Ishant Shah is present for Decree Holder, tendered attachment warrant TOR marked as Exh.03.
O- Leave is granted.
Matter stands adjourned to 06-04-2026 for.
Next Purpose: HEARING
Next Hearing Date: 06-04-2026

Date: 06-04-2026
Business: Parties are absent.
Adv. Reshant Shah i/b lex Conscieller for Decree Holder apprised that fresh attachment be issued in view of fresh application taken out on previous date 24-03-2026. Hence, fresh attachment warrant be issued as prayed.
None present for defendant.
Matter stands adjourned to 30-04-2026 for hearing.
Next Purpose: HEARING
Next Hearing Date: 30-04-2026

Date: 30-04-2026
Business: The P.O. is on leave for the first session.
Next Purpose: HEARING
Next Hearing Date: 22-06-2026

Date: 22-06-2026
Business: None present.
Matter stands adjourned to  02.07.2026 for hearing.
Later on. 1.05 p.m.
Adv. Rishant Shah for plaintiff present through VC.
Next Purpose: HEARING
Next Hearing Date: 02-07-2026

Date: 02-07-2026
Business: None present.
Matter stands adjourned to 01-08-2026 report of attachment
warrant.
Later on at 12.35 PM
Adv. Reshant Shah present for Decree Holder.
Matter is already adjourned to 01-08-2026 report of attachment
warrant.
Next Purpose: REPORT
Next Hearing Date: 01-08-2026

Date: 01-08-2026
Business: Adv. Rishant Shah present for Decree Holder through VC.
Judgment Debtor No.01 and 02 are present.
Adv. Gourav Shetye i/b Bali Associates for Judgment Debtor, tendered VP taken on record and marked as Exh.04.   O- R and R.
Adv. for Judgment Debtor submitted that they are intending to challenge order on Notice of Motion No. 3133/2018. It is also apprised that appeal has been filed before Honble Bombay High Court however, there is no stay to the present proceeding. Hence, fresh attachment warrant be issued.
Decree Holder  to take steps accordingly.
Matter stands adjourned to 07-09-2026  for report.
Next Purpose: REPORT
Next Hearing Date: 07-09-2026

Date: 07-09-2026
Business: Adv. Reshant Shah present for Decree Holder.
Adv. Gourav Shetye present for Judgment Debtor.
Matter stands adjourned to 30-09-2026 awaiting report of sheriff for
attachment.
Next Purpose: REPORT
Next Hearing Date: 30-09-2026

Registration Number: 100536/2017
Transfer Date: 07-09-2018
From Court: 966 - IC REGISTRAR CITY CIVIL COURT MUMBAI
To Court: 28 - COURT 28 ADD SESSIONS JUDGE

Registration Number: 100536/2017
Transfer Date: 15-06-2021
From Court: 28 - COURT 28 ADD SESSIONS JUDGE
To Court: 15 - COURT 15  ADDL SESSIONS JUDGE

Registration Number: 100536/2017
Transfer Date: 01-01-2024
From Court: 15 - COURT 15  ADDL SESSIONS JUDGE
To Court: 84 - judge 904

Registration Number: 100536/2017
Transfer Date: 29-06-2026
From Court: 84 - COURT 84 ADHOC JUDGE AND ADDL SESSIONS JUDGE
To Court: 85 - COURT NO 85 ADDL SESSIONS JUDGE

Filing Number: 100209/2018
Filing Date: 14-12-2017
First Hearing Date: 15th January 2018
Court Number And Judge: 85-COURT NO 85 ADDL SESSIONS JUDGE