Final Order 1

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IN THE BOMABY CITY CIVIL COURT AT BOMBAY
Transfer Application No.14 of 2019
In
Notice of Motion No.114 of 2019
In
S.C. Suit No.5026 of 2007
Mahadeo V. Koli ..Applicant/Org.
Plaintiff no.2
V/s.
Sanjay Patil & Ors. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
SHRI V.G. BISHT
Dated : 1st April,2019
(C.R.No.19)
Advocate Mr. Vijay Kurle for applicant.
Advocate Ms.K.C. Nichani I/b. Advocate Asha Bambwani for respondent
no.2.
Advocate Mr.Bharat Chaudhary for respondent nos.1 and 3.
O R A L O R D E R
Read application. Read reply (Exh.3 and 4).
2 The present application is filed by the applicantoriginal
plaintiff no.2 to transfer suit no.5026 of 2017 alongwith Notice of Motion
No.114 of 2019 pending in C.R. No.14 to C.R. No.34 .
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3 It appears that the applicant is plaintiff no.2 in suit no.5026 of
2007 in which they have taken out Notice of Motion 114 of 2019 for act of
perjury. The applicant states that for similar act of another Director of
accused company, the applicant had taken out Notice of Motion No.3476
of 2017 which is heard by presiding officer in C.R. no.14 on 8th
December,2017 and adjourned for order on many occasions. The applicant
further states that since no order was passed by the Presiding Judge in C.R.
No.14 till 27th February,2018, he took out Notice of Motion 858 of 2018 to
expedite earlier Notice of Motion.
4 According to applicant, the Notice of Motion no.3476/17 was
heard by Shri K.R. Joglekar, and decided on merits.
5 According to applicant, recently he filed Notice of Motion
no.114 of 19 and since the earlier Notice of Motion of similar nature was
heard by Shri K.R. Joglekar, it is necessary that this Notice of Motion
No.114/19 be heard him only. Hence, the application.
6 The respondent nos.1 and 3 resisted the application by filing
affidavit in reply (Exh.3) and denied all the contentions and contended
that the applicant has not made out any strong ground for transfer. Since
no prima facie case is made out the application deserves to be dismissed
forthwith.
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7 Similarly, respondent no.2 also opposed the application by
filing affidavit in reply (Exh.4). According to this respondent, since the
main suit itself has been dismissed, the present Transfer Application also
needs to be dismissed. According to the respondent the reasons given by
the applicant do not make any sufficient or reasonable ground and
thereafter the application is liable to be dismissed.
8 Mr.Vijay Kurle, learned counsel for applicant, submitted that
the earlier Notice of Motion No.3476/17 was decided by Shri K.R.
Joglekar on the similar facts and grounds which is now taken in Notice of
Motion No.114/19. Therefore, in the interest of justice it is necessary that
the present Notice of Motion i.e. 114/19 be transferred to C.R. No.34 from
C.R. No.14.
9 Mr.Bharat Choudhary, learned counsel for respondent nos.1
and 3, opposed the application by contending that no sufficient grounds
are made out for transfer of application. The learned counsel also place
reliance on M/s.Chetak Construction Ltd. V/s. Om Prakash & Ors. and
Abdul Rehman Nath V/s. Jugal Kishore and others.
10 Ms.K.C. Nichani, learned counsel for respondent no.2, also
opposed the submissions by contending that the applicant cannot be
allowed to choose the forum and their being no merit in the application
the same is liable to be dismissed.
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11 It appears that the earlier Notice of Motion bearing
No.3476/17 was heard and decided by Shri K.R. Joglekar and the
preliminary inquiry was initiated and it culminated into passing of final
order on 14th December,2018. It appears that having regard to reply
affidavit filed by respondent no.1, the present applicant has again filed
Notice of Motion no.114/19 to initiate similar action as was initiated
pursuant to the Notice of Motion no.3476/17 against respondent no.1.
12 I have carefully gone through the decisions relied on by the
learned counsel for respondent nos.2 and 3 and of the humble view that
the case in hand is distinguishable on the facts and therefore, the ratio laid
down in the judgment with due respect is not applicable to the case in
hand.
13 Since the earlier inquiry admittedly was conducted by Shri
K.R. Joglekar, in the interest of justice, it is necessary that this Notice of
Motion no.114/19 be heard and decided by him in accordance with law. I
do not find anything wrong in that.
14 In view of above, I pass the following order:
O R D E R
Transfer Application No.14 of 2019 is allowed.
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Suit No.5026 of 2017 alongwith Notice of Motion No.114 of
2019 pending in C.R. No.14 stands transferred to C.R. No.34
for disposal in accordance with law.
Both the courts be informed accordingly.
01/04/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 01/04/2019
Transcribed on : 02/04/2019
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 02/04/2019 (5.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 1st April,2019
Order signed by P.O. on 2nd April,2019
Order uploaded on 2nd April,2019
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