Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.180/2019 in S.C Suit No.1256/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.180 OF 2019
(C.N.R.No. MHCC010009752019)
IN
L.C. SUIT NO. 1256 OF 2009
(C.N.R.No. MHCC010028922009)
1(a) Sumitra Babu Kokate (Wife) ]
Age: 65 years, Occupation : Housewife ]
Residing at Room No.8 and a shed ]
Adjacent to Room No.8, Ground Floor, ]
Raja Bahadur Shivlal Motilal Property, ]
Patthe Bapurao Marg, Near Diana Cinema, ]
Tardeo, Mumbai 400 034. ]
1(b) Ashwini Vijay Narkar (Daughter) ]
Age: 50 years, Occupation : Housewife ]
Residing at 106LuvKush, Khandwala ]
Compound, DattaMandir Road, ]
Vakola, Santacruz (East), ]
Mumbai 400 055. ]
1(c) Vanita Babu Kokate (Daughter) ]
Age: 48 years, Occupation : Not known, ]
Residing at Room No.8 and a shed ]
Adjacent to Room No.8, Ground Floor, ]
Raja Bahadur Shivlal Motilal Property, ]
Patthe Bapurao Marg, Near Diana Cinema, ]
Tardeo, Mumbai 400 034. ]
1(d) Sayali Santosh Narkar (Daughter) ]
Age: 44 years, Occupation : Housewife ]
Residing at 508, Nandanvan Building, ]
Kakasaheb Hadgil Marg, Near Tilak ]
Bhavan, Dadar, Mumbai 400 028. ]
1(e) Savita Babu Kokate (Daughter) ]
Age: 41 years, Occupation : Not Known ]
Residing at Room No.8 and a shed ]
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2 C/H No.180/2019 in S.C Suit No.1256/2009
Adjacent to Room No.8, Ground Floor, ]
Raja Bahadur Shivlal Motilal Property, ]
Patthe Bapurao Marg, Near Diana Cinema, ]
Tardeo, Mumbai 400 034. ]
1(f) Amit Babu Kokate (Son) ]
Age: years, Occupation : Service ]
Residing at Room No.8 and a shed ]
Adjacent to Room No.8, Ground Floor, ]
Raja Bahadur Shivlal Motilal Property, ]
Patthe Bapurao Marg, Near Diana Cinema, ]
Tardeo, Mumbai 400 034. ]..Plaintiffs.
V/s.
1 Maharashtra Housing and Area ]
Development Authority, ]
Authority established under the ]
Maharashtra Housin and Area Development]
Act, 1976, having its office at Griha Nirman]
Bhavan, Bandra (East), Mumbai400 051. ]
2 Madhavlal N. Pittle, ]
Age : 78 years, Occupation : Business ]
appointed Receiver in Bombay High Court ]
Suit No.224 of 1961, Having his office ]
at World Trade Centre, Centre1, ]
10th Floor, Cuffe Parade, Mumbai400 005. ]
3 M/s. Manas Shelters Pvt. Ltd. ]
Company incorporated under the Indian ]
Companies Act, 1956 and having its ]
registered Office at Yogi Smruti 'A' Wing, ]
2nd floor, Park Road, Vile Parle (East), ]
Mumbai 400 057. ]..Defendants.
AND
Vivek Madhavlal Pittle, ]
Age 59 years, Occupation: Business ]
Trade Centre, Centre1,10 th Floor, ]
Cuffe Parade, Mumbai400 005. ]..Respondent.
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3 C/H No.180/2019 in S.C Suit No.1256/2009
Advocate Mr. Kothari for plaintiffs.
Advocate Ms. Prabhu for defendant no.1.
Advocate Mr. Bane for respondent.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 13th JUNE 2019
ORAL ORDER
This Chamber summons has been taken out by the plaintiff
for bringing on record legal heirs of deceased defendant no.2 and
accordingly for carrying out amendment in the suit plaint.
2 Plaintiff no.1(f) has filed his affidavit in support of chamber
summons, wherein he has stated that during the pendency of the suit
defendant no.2 expired on 11.04.2018 leaving behind him respondent
no.2(a), who is only legal heir and representative. The advocate for
defendant no.2 by their letter dated 29.05.2018 informed his advocate
that defendant no.2 died on 11.04.2018 and the details of the legal heir
of defendant no.2 Thereafter, on 29.06.2018, advocate for defendant
no.2 by their letter further corrected the error in the name of legal heir
of defendant no.2. He has filed present Chamber Summons to delete
the name of deceased defendant no.2.
3 It is further averred that the suit is already stayed by the
Hon'ble High Court vide Order dated 19.03.2014 passed in Writ Petition
No.2895/2014 filed by defendant no.2. The present chamber summons
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was ready to file, however, due to personal difficulty and non
availability on his part, he could not attend the office of his advocate to
give instructions and to affirm the affidavit in support of the Chamber
Summons. For the reason stated above, the plaintiffs could not move
the Chamber Summons within time. There is occurred delay of 16 days.
The delay was unintentional. No harm, loss or injury would be caused
to the defendants, if the present Chamber Summons is allowed.
However, on the contrary great harm, loss and prejudice would be
caused to the plaintiffs, if the present Chamber Summons is not
allowed and which cannot be compensated in terms of money. Thus,
prayed for allowing chamber summons.
4 The respondent through Constituted Attorney has filed his
affidavit in reply, wherein he has contended that his advocate vide
letters dated 29.05.2018 and 29.06.2018 informed the death of original
defendant no.2 and further informed an order dated 13.04.2018 passed
in Notice of Motion No.916/2018 in Suit No.224/1961. By the said
order, the Hon'ble High Court has appointed Mr. Vivek Madhavlal Pittle
as Receiver in place and stead of Madhavlal Pittle with all powers that
vested in the deceased and requested to take necessary steps towards
bringing on record the name of the present respondent. It is further
contended that with the letter, the advocate for respondent forwarded
copy of the death certificate and copy of the order dated 13.04.2018
passed by the Hon'ble High Court.
5 Pursuant to the aforesaid letter of the advocate, the
present Chamber summons has been taken out. It appears from the
schedule annexed to the Chamber Summons , the plaintiffs seeking to
add only name and address of the respondent without mentioning how
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the respondent is appointed as receiver of the suit property and details
of the order dated 13.04.2018 passed by the Hon'ble High Court.
Therefore, the present chamber summons is liable to the rejected.
Further it is contended that undisputedly the present Chamber
Summons is taken out on 15.10.2018, which is beyond the period of
law of limitation. The delay in taking out present Chamber summons is
45 days from the date of knowledge of the death of deceased and
appointment of new Receiver and not 16 days as alleged by the
plaintiffs.
6 It is admitted that the suit is stayed, but denied that due to
personal difficulty and nonavailability on the part of plaintiff no.1(f),
he could not attend the office of his advocate to give instructions and to
affirm the affidavit. On the contrary, there are six plaintiffs and so any
one can attend the office of their advocate and may give instructions. It
is further contended that if the present Chamber is allowed, great
harms, loss or injury would be caused to the defendant. Hence, prayed
for dismissal of chamber summons along with the costs.
7 Heard learned advocate for the plaintiffs and the learned
advocate for the respondent.
8 It appears that there is no dispute regarding receipts of
letters from the advocate of defendant no.2. Further, admittedly, order
has been passed by the Hon'ble High Court in Notice of Motion
No.916/2018 in Suit No.224/1961. After perusal of documents
tendered by the plaintiffs, it seems that the plaintiffs have knowledge of
the order and demise of defendant no.2 and appointment of present
respondent vide order passed by the Hon'ble High Court as Receiver in
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place and stead of deceased defendant no.2. It appears that plaintiff
no.1(f) has not specifically stated what was his personal difficulty to
attend the office of his advocate to give instructions. Further, plaintiff
no.1(f) has not stated why remaining plaintiffs were not available for
giving instructions to the advocate. In such, background, it appears that
delay is caused in filing present chamber summons is not of 16 days
only as stated by the respondent. There is delay of more that 16 days.
It reveals from reason stated that said delay caused is not intentional.
Considering the order passed by the Hon'ble High Court and demise of
defendant no.2, it is just and proper to condone delay caused by the
plaintiffs for bringing on record legal heirs of deceased defendant no.2,
so as to decide real controversial issues involved in the suit on merits.
Therefore, in the interest of justice, the present Chamber Summons is to
be allowed, but considering delay caused, costs is necessary to be
imposed upon the plaintiffs. With this, I proceed to pass the following
order:.
ORDER
The Chamber Summons No. 180 of 2017 is made absolute
in terms of prayer clause (a), (b) and (c), subject to the payment of
costs of Rs.2,000/ (Rupees Two Thousand only) payable by the
plaintiffs to the respondent.
2 On payment of costs, the plaintiffs are hereby directed to
carry out amendment in the suit as prayed within two weeks from the
date of this Order.
3 The plaintiff is further directed to place on record
amended copies of the suit plaint and to serve copy of amended plaint
to the defendants and newly added defendant.
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4 Chamber Summons No.180 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Date: 13/06/2019. Gr. Bombay.
Dictated on : 13/06/2019
Transcribed on : 13/06/2019
Signed on : 13/06/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/06/2019 At 5.40 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
13/06/2019
Judgment/Order signed by P.O. on 13/06/2019
Judgment/Order uploaded on 13/06/2019
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This notice of motion has been taken out by defendant no.3 for setting
aside order passed in roznama dated 21.02.2019 and for taking on
record affidavit in reply for defendant no.3.
Perused affidavit in support.
Heard the learned advocate for defendant no.3 and advocate for the
plaintiff.
Perused roznama dated 21.02.2019. It appears that my learned
predecessor has accepted reply tendered on 21.02.2019 only on behalf
of defendant no.4 and no reply order has been passed against the
remaining defendants.
Today, the reason stated by defendant no.3 in his affidavit in support of
notice of motion is that due to his illhealth, he could not remain
present to sign affidavit in reply tendered on 21.02.2019. During the
course of arguments, the learned advocate for the plaintiff has time and
again pointed out that reply tendered on 21.02.2019 was for defendant
nos.2 to 4. Therefore, there is no question of filing another reply on
record by this notice of motion. Thus, considering his submission and
after perusal of affidavit in reply on 21.02.2019, it appears that, it is
reply filed on behalf of defendant nos.2 to 4. In the circumstances,
considering order passed on 21.02.2019, I proceed to pass the following
order in this notice of motion:
ORDER
Order passed on 21.02.2019 is hereby set aside and already tendered
reply to notice of motion be taken on record as reply on behalf of
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defendant nos.2 to 4 to the notice of motion of the plaintiff bearing
No.3950 of 2018.
Accordingly, the Notice of Motion No.845/2019 stands disposed of
accordingly.
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