Final Order 1

Order Details: Notice of Motion
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MHCC010006352019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 246 OF 2019
IN
S.C. SUIT NO. 3902 OF 2010
1. Simon J.Patro & Anr. )...Plaintiffs.
V/s.
Harishree Enterprises & Ors. )...Defendants.
Appearance:-
Ld. advocate Mr. Jadhav for plaintiffs.
Ld.advocate Mr.M. P. Mishra for defendant nos. 2 and 3(b).
Ld.advocate Mr.A.K.Shukla for defendant nos. 3(c) and 3(d).
CORAM: HIS HONOUR JUDGE
SHRI R.V. KOKARE
DATE : 12/03/2020(C.R.No.31)
ORDER
This is a notice motion taken out by the defendant nos. 2
and 3(b) for accepting their written statement which is affirmed
on 09/01/2019 by condoning delay for four years and 11 months.
This notice of motion resisted on behalf of the plaintiffs by filing
their reply. Read the present notice of motion, reply of the
plaintiff thereon. Heard both the learned counsels on behalf of
both the sides at length. Perused the record.
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2. The learned counsel on behalf of the defendant nos. 2 and
3(b) has submitted that the present suit filed by the plaintiffs
before the Hon’ble Bombay High Court. The suit summons were
not duly served on the defendant nos. 2 and 3(b). They have also
not served copy of plaint. These defendants have filed their
written statement on 16/11/2018, but their written statement was
not recorded and matter was posted for admissibility of written
statement filed by these defendants. The plaintiffs subsequently
amended the plaint by moving chamber summons no.42/2015
and 1691/2016. The Hon’ble Court has passed the order and
allow the chamber summons no. 1691/2016 dated 17/03/2018.
The plaintiffs have not served the copy of amended plaint on these
defendants. But on request by the advocate for these defendants
to the plaintiff, the amended copy of plaint served on these
defendants on 22/10/2018. Thereafter, on 05/01/2019, these
defendants came to know that their written statement which was
filed on 16/11/2018, was not recorded and matter was posted for
admissibility of written statement. Therefore, these defendants
have contacted to their advocate and thereafter they came to
know that no written statement order was already passed against
them dated 17/02/2014. These defendants have already filed
their written statement on 16/11/2018. There was no intention of
these defendants for prolonging the matter, but the plaintiff by
making amendment, the matter could not be disposed off.
Therefore, there is delay on the part of the plaintiff and not on the
part of these defendants. Therefore, the present notice of motion
took out by these defendant may kindly be allowed.
3. The learned counsel on behalf of the plaintiffs has submitted
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that on 24/06/2010, the copy of notice of motion no. 1648/2010
and copy of plaint were served on these defendants. The
defendant nos.2, 3(a) and 3(b) were appeared through their
advocate Mr. M. P. Vashi & Associates dated 22/11/2010. These
defendants intentionally could not file their written statement
within stipulated period with an intention to prolong the matter.
Therefore, the Hon’ble Court passed order dated 17/02/2014 that
suit to proceed without written statement against these
defendants. These defendants have filed their written statement
on 16/11/2018 without set asiding no written statement order
passed against them dated 17/02/2014. This notice of motion
came to be filed by these defendants for condoning delay for 4
years and 11 months. The learned counsel on behalf of the
plaintiffs has submitted that considering the delay and there is no
properly explained by these defendants in this notice of motion,
the present notice of motion of these defendants may kindly be
dismissed with costs.
4. After hearing the arguments advanced on behalf of both the
sides at length, on perusal of the record, it appears to me that
admittedly the present suit came to be filed by the plaintiffs in the
year 2010 before the Hon’ble Bombay High Court. During pending
of the suit, the defendant no.3 is died and the plaintiffs have
brought the legal heirs of deceased defendant no.3 is on record by
order of Hon’ble Bombay High Court dated 30/08/2011. The
present defendant no.3(b) is the legal heir of deceased defendant
no.3. The said suit is transferred to this Court by the Hon’ble
Bombay High Court dated 30/11/2012. The plaintiffs have made
amendment by moving chamber summons no. 42/2015 dated
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14/06/2016 and by chamber summons no. 1691/2016 dated
17/03/2018. Admittedly, these defendants have filed their written
statement dated 16/11/2018 without set asiding no written
statement order passed against them dated 17/02/2014. The
present suit came to be filed on behalf of the plaintiff for Specific
Performance of Agreement. Till this date, the issues are not
framed. The present stage of this suit is for framing of issues.
Therefore, by considering reasons mentioned in this notice of
motion, if this notice of motion taken out by these defendants is to
be allowed by imposing costs, then it will not cause any injustice
on the part of the plaintiffs. Therefore, I inclined to allow this
notice of motion taken out by the defendants. Hence, I proceed to
pass following order.
ORDER
1. Defendant nos. 2 and 3(b)’s notice of motion no.246/2019 is
hereby allowed as prayed for subject to cost of Rs.5,000/-.
2. Defendant nos. 2 and 3(b) shall pay cost of amount of
Rs.5,000/- to the plaintiffs on or before next date i.e. on
09/04/2020.
3. Notice of motion no. 246/19 is disposed off accordingly.
(R.V.Kokare)
Judge,
Date : 12/03/2020 City Civil Court, Gr. Bombay.
Dictated on: 12/03/2020
Transcribed on:12/03/2020
Signed by HHJ: 13/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13/03/2020 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.31)
Date of Pronouncement of
Judgment/Order
12/03/2020
Judgment/order signed by P.O on 13/03/2020
Judgment/order uploaded on 13/03/2020
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