Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.157 of 2019
CNR No.MHCC010004592019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.157 OF 2019
IN
SUIT NO.2954 OF 2006
Chedilal Mataprasad Gupta ( deceased)
Sumitra Chedilal Gupta And Ors. .. Plaintiffs
Versus
Sanjay Jaiprakash Gupta and Ors. .. Defendants
Appearance :
Advocate Shinde for plaintiff.
Ld. Advocate Tiwari for defendant no. 1.
Ld. Advocate Surendra Yadav alongwith Sanjana for defendants no. 3,
4 and 5.
Ld. Advocate Bosamia for defendants no. 7 and 8.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 21.02.2019
: ORDER :
This Notice of Motion is taken out by defendants no. 3,4 and
5 for settingaside exparte order dated 30.03.2009 and for condoning
the delay of 9 years 9 months and 11 days for taking their written
statement on record.
2. Counsel for defendants no. 3, 4 and 5 submitted that they
received writ of summons. Thereafter they approached defendant no. 1,
who assured them to engage in advocate on behalf of them and to
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: 2 : Notice of Motion No.157 of 2019
defend the matter against the plaintiff. They paid Rs. 15000/ each to
defendant no. 1 in cash. They were under the impression that defendant
no.1 was defending their case. Thereafter on 19.12.2018 defendant no.
6 informed them that they had settled the matter with defendants no. 7
and 8. It was also informed them that the defendant no. 1 was also
going to settle the matter with defendants no. 7 and 8. They
approached the defendant no. 1 on 20.12.2018. At that time defendant
no. 1 informed them that he has not engaged any advocate on behalf of
defendants no. 3, 4 and 5. They obtained necessary certified copy by
approaching their counsel. They further submitted that prejudice would
be caused to them, if opportunity is not granted to them to file the
written statement.
3. Counsel for defendant no. 1 appeared and submitted that the
delay is not explained by these defendants. False allegations are made
against them. There is long delay, which cannot be condoned. They
denied all the adverse allegations made against them. It was submitted
that the suit is old and prayed to dismiss the motion.
4. Counsel for defendants no. 7 and 8 appeared and submitted
that no power of attorney was given by defendants no. 3 to defendant
no. 5 to defendant no.1 and they prayed to dismiss the motion on this
ground. It was further submitted that there is long delay, which cannot
be condoned. They contended that they were unaware regarding what
transpired between defendant no. 1 and defendants no. 3 to 5. They
submitted that defendants are acting in collusion to delay the matter
and prayed to dismiss the motion.
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5. Counsel for plaintiff appeared and submitted that the
argument has started in this matter. There is long delay on part of
defendants no. 3 to 5. They further submitted that this notice of motion
has been taken out for delaying the matter and prayed to dismiss the
motion.
6. Heard Ld. Counsel Surendra Yadav for defendants no. 3, 4
and 5, Advocate Tiwari for defendant no. 1, Advocate Bosamia for
defendants no. 7 and 8 and Advocate Shinde for plaintiff. Perused the
material on record.
7. Upon considering the hearing it is apparent that writ of
summons was served on defendants no. 3 to 5. Instead of appearing
before the court they approached to defendant no. 1. As per submission
defendant no.1 agreed to engage the counsel on behalf of defendants
no. 3 to 5. Thus, disputes in this case appears to interse between the
defendant no. 1 and 3 to 5.
8. In this case the respective parties had adduced their evidence
and arguments are also partly concluded. The matter is old. There is
delay of 9 years 9 months 11 days. It cannot be condoned. The delay
was caused only due to negligence of defendants no. 3 to 5. Liberal
approach cannot be adopted in such matter when writ of summons was
served on them. The reasons given for settingaside the order cannot be
turned as a sufficient cause. Hence, this court is not inclined to
condone the delay. Accordingly, I pass the following order.
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: ORDER :
Notice of Motion No.157 of 2019 is dismissed.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 21.02.2019 Gr. Mumbai
Dictated on : 21.02.2019
Transcribed on : 21.02.2019
Signed on : 21.02.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 22.02.2019 at 3.02 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
21.02.2019
JUDGMENT/ORDER signed by P.O. on 21.02.2019
JUDGMENT/ORDER uploaded on 22.02.2019
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