Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.153/2019 ..1.. In S.C. Suit No.1328/2017
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 153 OF 2019
IN
S.C. SUIT NO. 1328 OF 2017
CNR NO :- MHCC01-000444-2019
Smt. Hemlata Eknath Bhoir,
Age : 56 Years, Occ.: Housewife,
Residing At : A/705, Sai Aasha CHS.,
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam
Nagar Phase-2, Mulund East, Mumbai-81. ...Plaintiff
Versus
1. Mr. Vinayak Damodar Vaity (Deceased)
a) Smt. Jayashree Vinayak Vaity
b) Neha Vinayak Vaity
c) Harshal Vinayak,
All Residing At : 104, Gokul Building,
Gokul Marhura CHS., V. B. Phadke Road,
Near Vrundavan Dham D,
Mulund East, Mumbai-81.
2. Mr. Chandrakant Damodar Vaity
Residing At : 104, Gokul Bldg.,
Gokul Marhura CHS., V .B. Phadke Road,
Near Vrundavan Dham D,
Mulund East, Mumbai-81
3. Mr. Mahendra Damodar Vaity
Residing At : A/503, Sai Aasha CHS.,
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam
Nagar Phase-2, Mulund East, Mumbai-81.
4. Vilas Damodar Vaity
Residing At : B/201,, Sai Aasha CHS.,
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam
Nagar Phase-2, Mulund East, Mumbai-81.
5. Mr. Ramesh Damodar Vaity,
Residing At : A/503, Sai Aasha CHS.,
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Notice of Motion No.153/2019 ..2.. In S.C. Suit No.1328/2017
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam
Nagar Phase-2, Mulund East, Mumbai-81. ...Defendants
Appearance :-
Ms. Mailgir, Advocate for the Plaintiff.
Ms. Vaibhavi Pawar, Advocate for defendant No. 1(a) to 1(c).
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 23RD FEBRUARY, 2021.
ORAL ORDER
Defendants No. 1(a), 1(b) and 2 to 5 have prayed for
condoning the delay of 391 days in filing the notice of motion, to set
aside order dated 10.07.2018 and to allow them to file written
statement on record.
2. It is their case that, they were served with writ of summons
on 11.12.2017. On 19.12.2017 the suit was listed for filing affidavit of
service. On that day their advocate requested the Court to direct the
plaintiff to supply copy of plaint. Advocate for plaintiff undertook to
supply the copy of plaint and documents on the defendants’ advocate.
The plaintiff did not supply copy of documents till 10.07.2018. The
documents were served on 10.07.2018. The suit was thereafter listed
on 04.10.2018, on which date time was sought for filing written
statement. On 10.07.2018 the case was posted for proceeding without
written statement of these defendants. The talks of settlement were
going on and so the instructions were not given to the advocate to file
written statement. There was no deliberate or willful default on the
part of the defendants. Due to uncertain and illegal demands of the
plaintiff the dispute could not be settled.
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Notice of Motion No.153/2019 ..3.. In S.C. Suit No.1328/2017
3. The plantiff has opposed the notice of motion on the
ground that, defendants have distorted facts deliberately. They have
not come with clean hands. They have suppressed material
circumstances. The delay is intentional and inordinate. The documents
were served on the defendants on 19.12.2017 itself. The defendants
could have filed the written statement and were not prevented by any
unavoidable circumstance from filing the written statement. The
defendants were not prevented from appearing when the proceedings
were taken up for hearing or mediation. The defendants are guilty of
gross negligence.
4. Perused. Heard.
5. Perusal of affidavit in support of notice of motion reveals
that, the defendants have claimed that till 10.07.2018 the documents
were not served by the plaintiff on their advocate and their advocate
received the documents on 10.07.2018 as per directions of the Court.
6. Perusal of roznama dated 10.07.2018 however reveals that, on
that day the plaintiff had filed affidavit stating that defendants No. 1 to
5 were served with entiere set of papers on 19.12.2017 itself. An
acknowledgment to that effect was produced on record. The advocate
for defendants 1(a), 1(b) and 2 to 5 had accepted the fact that the case
papers were received.
7. Perusal of proceedings further reveal that, the affidavit of
service dated 15.03.2018 is filed coupled with an acknowledgment by
advocate Mr. Kudalkar for defendants No. 1 to 5 revealing that, he has
received the papers on 19.12.2017 for defendants No. 1 to 5.
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Notice of Motion No.153/2019 ..4.. In S.C. Suit No.1328/2017
8. The roznama dated 10.07.2018 coupled with the affidavit
of service thus clearly indicate that, the papers of the suit were received
by advocate for defendants No. 1 to 5 on 19.12.2017 itself in
accordance with the undertaking by the advocate for the plaintiff. This
reveals that, the defendants have made a flase statement before the
Court on affidavit that, their advocate received the documents of the
suit on 10.07.2018 and not on 19.12.2017 as disclosed by the record.
9. Through catena of decision, it is well setlled legal position
that, a litigant has to come to the Court with clean hands. A litigant
making a false statement before a Court on a material particular is not
entitled to any relief from the Court. In this case, it is clear that, the
defendants have made a false statement on affidavit that their advocate
was served with the documents of the suit on 10.07.2018. On this
ground alone the notice of motion needs to be dismissed.
10. Considering the falsity of defendants’ claim, the other
grounds raised in the notice of motion also do not inspire confidence,
moreover, when those are denied by the plaintiff. Therefore, I hold
that, the defendants have not made out sufficient ground to allow them
to file the written statement by setting aside order dated 10.07.2018.
Hence, following order :-
ORDER
Notice of Motion No. 153/2019 is dismissed with
costs.
(AJIT N. MARE)
Judge,
Date : 23.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 23.02.2021
Transcribed on : 23.02.2021
HHJ Signed on : 26.02.2021
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Notice of Motion No.153/2019 ..5.. In S.C. Suit No.1328/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
26.02.2021 5.21 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 23.02.2021
Order signed by P. O. on 26.02.2021
Order uploaded on 26.02.2021
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