Final Order 1

Order Details: Notice of Motion
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Order in NM 84/2020 in Suit 1584/2014
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 84 OF 2020
IN
S.C.SUIT NO.1584 OF 2014
(CNR NO. MHCC01-000244-2020)
Churchgate Investments and Trading
Company Pvt. Ltd. …. Plaintiff
Versus
Omnitech Infosolutions Ltd. & Ors. ….Defendants
Appearance:
Advocate Sapna Krishnappa, for Defendant No. 2 to 5.
Advocate Digant Bhatt for Plaintiff.
CORAM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATE : 17/03/2021
ORAL ORDER
1) The Notice of Motion is filed by defendant nos. 2 to
5 to set aside the No Written Statement Order dated 20.04.2015
and condone the delay to file written statement.
2) The Notice of Motion is supported by affidavit of
defendant nos. 2 to 5 separately stating the cause of delay. The
defendants stated that the company was wound up by the order
of Hon'ble High Court dated 18.03.2015. The suit was stayed by
the order of the Hon'ble High Court dated 23.03.2017. The No
Written Statement Order was passed on 20.04.2015. The
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Order in NM 84/2020 in Suit 1584/2014
defendant has no knowledge of No Written Statement Order.
Since the suit was stayed, therefore there was no occasion to file
Written Statement. The defendant no. 2 to 5 came to know about
the No Written Statement Order on 04.09.2019. Hence, prayed to
allow the Notice of Motion.
3) The Plaintiff filed reply through affidavit of Vijay
Rokade, the authorized representative of the plaintiff company
and has denied the contents of Notice of Motion in toto. The
Plaintiff has in detail described the facts to show that the
defendants were well aware of the suit and the No Written
Statement Order passed against them. The defendants have
earlier filed Notice of Motion to condone the delay to file Written
Statement. The said Notice of Motion was allowed on payment of
cost of Rs.2,000/- each. The defendant though were aware of the
order, did not file Written Statement. The defendant cannot get
an opportunity after period of three years to file Written
Statement. The plaintiff stated para of defendant's reply in Ch/s
No. 921 of 2017 that,
“8. With reference to para 4 that, the principal
borrower, the Defendant No. 1 filed their written
statement dated 22nd July, 2014 and this Hon'ble
Court was pleased to pass a “NO W.S. ORDER”
against the remaining Defendants is because the
principal relief was being sought against the
company and the said cause of action is being
sought to be changed now with the chamber
summons.”
4) The Plaintiff stated that under the law, the liability of
defendant no. 2 to 5 is coextensive. The defendants are aware
that the suit is filed to recover the amount. The Notice of Motion
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Order in NM 84/2020 in Suit 1584/2014
is not tenable. Hence, prayed to reject the Notice of Motion.
5) Heard Advocate Sapna Krishnappa, for Defendant
No. 2 to 5 and Advocate Digant Bhatt for Plaintiff. Perused the
contents of Notice of Motion supported by affidavit of defendant
no. 2 to 5 and reply of plaintiff. I have also gone through the
rejoinder affidavit filed by defendant no. 3 to the reply of
plaintiff.
6) On perusal of roznama, the defendant appeared by
filling vakalatnama on 08.07.2014. The defendant sought time to
file Written Statement. The Written Statement on behalf of
defendant no. 1 was filed on 04.08.2014. Thereafter, the
defendant no. 2 to 5 filed Notice of Motion No. 3837, 3838 and
3839 of 2014 to condone delay to file Written Statement. The
Notice of Motion was allowed on payment of cost of Rs. 2000/- in
every Notice of Motion. The defendant paid Rs.2,000/- on
24.03.2015 and on oral request of defendant, time was granted
to file Written Statement. The roznama dated 10.07.2015 shows
that there is a stay to the proceeding in Company Petition No.
428 of 2014. The defendant failed to file the Written Statement.
Suit to proceed without Written Statement against defendant no.
2 to 5.
7) Advocate Shri. Bhatt for plaintiff has filed order of
Hon'ble High Court dated 26.04.2019 in Company Petition No.
499 of 2014 whereby the plaintiff has been granted leave to
proceed with the suit against defendant no. 2 to 5. The advocate
for defendant no. 2 to 5 did appear in the suit but failed to take
steps and the present Notice of Motion was filed on 23.11.2019.
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Advocate Shri. Bhatt for defendant has pointed out the roznama
wherein since 2016 that advocate for defendant were present and
had knowledge of the proceeding.
8) The roznama shows that the suit was stayed on
23.03.2017. Thereafter, the plaintiff filed order of the Hon'ble
High Court dated 26.04.2019 and the suit proceeded further. The
defendant no. 2 to 5 were well aware of the order passed in
Notice of Motion No. 3837, 3838 and 3839 of 2014 wherein they
have affirmed affidavit stating the cause of delay. The defendant
no. 2 to 5 are pledger and/or guarantors for defendant no. 1
company. The pledge was created in favour of plaintiff by
defendant no. 2 to 5 to secure loan of Rs.75 Lakh with interest at
the rate of 18% per annum on terms and condition of loan
agreement.
9) The title clause of the plaint shows that defendant
no. 2 to 5 are promoters of defendant no. 1 company. Therefore,
the contention of advocate for defendant in the argument that
they were not aware of the order passed by the Hon'ble Court
cannot be accepted, as the proceeding goes to show that there
was liquidation of the company and they were very well aware of
the affidavits filed in the Court by them to grant opportunity to
file Written Statement by condoning delay. The opportunity was
granted to the defendants but they did not file the Written
Statement. There was no stay to the proceeding till the order was
passed on 23.03.2017. Thereafter also the defendant waited till
23.11.2019 and when the order was passed by Hon'ble High
Court on 26.04.2019 granting leave to the plaintiff to proceed
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against defendant no. 2 to 5, the present defendant no. 2 to 5
woke up and filed the present Notice of Motion on 23.11.2019,
when the suit proceeded ex-parte against them. The roznama
shows that on behalf of defendants, the advocate was present.
10) The above facts shows that the defendant was well
aware of the proceeding of the suit and the orders passed in
favour/against them. The defendant no. 2 to 5 were watching the
proceeding but didn't take any steps to file the Written Statement.
Even alongwith this Notice of Motion the Written Statement is
not filed to show their fairness and diligent to proceed with the
suit. The defendant no. 2 to 5 were already granted an
opportunity in the Notice of Motion No. 3837, 3838 and 3839 of
2014. The defendant no. 2 to 5 are promoters of the company
and not a layman. They are well aware of the proceeding and
cannot take disadvantage by saying that they were not aware of
the proceeding. Hence, no sufficient ground made out to set aside
No Written Statement Order and condone delay of 1643 days to
file Written Statement. Hence, pass the following order:-
ORDER
1. Notice of Motion is rejected.
2. No order as to cost.
3. Accordingly, Notice of Motion is disposed of.
(S.S. Nagur)
Date : 17/03/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 17/03/2021
Pronounced on : 17/03/2021
Typed on : 17/03/2021
Signed on : 18/03/2021
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Order in NM 84/2020 in Suit 1584/2014
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/03/2021 4.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
17/03/2021
Judgment/order signed by P.O on 18/03/2021
Judgment/order uploaded on 18/03/2021
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