Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 154/19 (Suit 1845/17)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.154/2019
(CNR No.MHCC010004412019)
IN
S .C. SUIT NO.1845/2017
Mr. Suryakant Dinkar Javkar ..Plaintiff
V/s.
1. Mr. Nitin Eknath Amberkar
2. Smt. Gayatri S. Amberkar
3. Mrs. Siddhi Nirav Shah
4. Mrs. Samruddhi Amol Naik
5. Mrs. Anuradha Ashok Naik,
6. Mrs. Sapna Suresh Bawkar,
7. Mrs. Dhanshree Vishwanath Lokhre
8. Mrs. Madhura Milind Mane. ..Defendants
Appearance:
Adv. Mr. Yadav for plaintiff.
Adv. Ms. Nilima Sarvgun for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 28.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendants for
setting aside the order passed by this court on 7.3.2018 directing the
suit to proceed without WS of the defendants by condoning delay of
about 180 days in filing the WS. The N/M is supported by an affidavit
filed by Nitin Eknath Amberkar, who is defendant no.1 in this suit on
behalf of defendants. The N/M is opposed by plaintiff Suryakant Javkar
by filing his affidavit. Seen and considered the same.
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2 N/M 154/19 (Suit 1845/17)
2. I have heard Ld. Counsels for both sides at length.
3. Ld. Counsel for the defendant submitted that, the
defendant is served with writ of summons in the month of December,
2018. But due to urgent personal work, defendant no.1 could not
attend the court as he had to go out of town. Therefore, defendant no.1
also could not instruct his advocate in the matter. It is further submitted
that, there was inadvertent mistake on the part of defendant no.1. The
Court had passed impugned order dated 7.3.2018 to proceed with the
suit without WS on record. It is submitted that defendant no.1 is an
elder brother of other defendants and has to look after family affairs, so
he could not remain present before the court on the relevant date. It is
submitted that, the defendant has also filed a suit in this court bearing
Suit No.1615/16 and as per judgment and decree dated 21.4.2018, the
Court has decreed the suit and restrained the plaintiff from entering
into suit flat. The suit premises in the present case are also same.
Present suit is nothing but a cross or countersuit of the above said
proceeding. Considering the above facts and circumstances, the delay
of about 180 days in filing the WS needs to be condoned and the
defendants be given opportunity to counter the suit by submitting their
WS on record.
4. Ld. Counsel for the plaintiff has opposed the Motion and
relied on the affidavit in reply filed by the plaintiff in the case. He
submitted that, the grounds stated in the Motion for condoning the
delay in filing WS are not sufficient and appropriate for condoning the
delay. The defendants have been negligent in conducting their case and
have failed to submit WS within statutory period of 90 days and no
proper explanation has been given. It is submitted that, the decision in
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3 N/M 154/19 (Suit 1845/17)
the counter suit bearing No.1615/16 is not much relevant for deciding
present Motion. The delay of 180 days i.e. of six months is exorbitant
and cannot be condoned on the grounds stated by the defendants in the
Motion. Hence, the Motion is liable to be dismissed.
5. I have gone through the Motion and affidavit in reply to the
same. I have also considered oral submissions made by Ld. Counsels for
both sides and find that, there has been delay of 180 days in filing the
WS by the defendants and the defendant no.1 has given reasons and
probable circumstances, which has resulted into proceeding the suit
without WS against the defendants. I am of the opinion that, the
present Motion can be allowed subject to reasonable costs to the
plaintiff on the count of delay, which has already occurred in the
matter. It will meet ends of justice. Hence, I proceed to pass following
order:
ORDER
Notice of Motion No.154/2019 is hereby allowed and
made absolute in following terms.
1. Order passed by this Court dated 7.3.2018 stands set
aside on defendants paying costs of Rs.3,000/ to the
plaintiff or depositing the same in the court, within
three weeks from today, failing which the Notice of
Motion shall stand dismissed.
2. If defendants pay/ deposit the costs, as directed
above within stipulated period, the order passed by
this court dated 7.3.2018 to proceed the suit without
WS shall stand set aside and WS of the defendants
shall be taken on record.
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4 N/M 154/19 (Suit 1845/17)
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 28.11.2019 Gr. Bombay (C.R. 03)
Dictated on :28.11.2019
Typed on : 29.11.2019
Signed by HHJ on : 30.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 30.11.19
TIME: 5.41 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 28.11.19
Judgment/ order signed by P.O on 30.11.19
Judgment/ order uploaded on 30.11.19
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