Date: 14-08-2023
Business: Coram HHJ Shri A. S. Gaike, Additional Sessions Judge,
(Court Room No.32)
Matter pertains to Court Room No.31
All called, but absent
Issue writ of summons as per rules.
Matter adjourned to 05.12.2023 for Affidavit of service.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 05-12-2023
Date: 05-12-2023
Business: Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Plaintiff Haren Somaiyya present. His counsel absent.
He is seeking oral adjournment to effect service.
Time extended to effect service.
Case adjourned to 25.04.2024 for affidavit of service.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 11-01-2024
Date: 11-01-2024
Business: Court hall shifted from City Civil Court Building, Fort to Mazgaon Court Building, Mazgaon on 02.01.2024
Not on board, taken on Todays board.
Regular Date is 25.04.2024.
Exh.2 - Application filed by defendant for taking the Suit on todays board. Order - Allowed.
Adv. Vimal Tiwari present for defendant.
Exh.3 - Vakilpatra filed by defendant.
Taken on record subject to objection of plaintiff
Exh.4 - Draft Notice of Motion filed by defendant for condonation of delay.
Exh.5 - Affidavit in support of Notice of Motion.
Notice of Motion is accompanied with copy of written statement.
Order- leave is granted to register Notice of Motion.
Case already adjourned to 25.04.2024 for Notice of Motion.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 25-04-2024
Date: 25-04-2024
Business: Haren Somaiya V/s Bishmbhar Varma
Adv. Ashish Gupta present for plaintiff.
Plaintiff Haren Somaiya present.
Adv. Vimal Tiwari present for defendant.
Exh.06- Affidavit of service filed by plaintiff stating that the RPAD summons is served on 12.10.2023 on the defendant.
Parties to take steps regarding pending Notice of Motion.
Suit adjourned to 09.08.2024 for Notice of Motion.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 09-08-2024
Date: 09-08-2024
Business: Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Adv. Ashish Gupta present for plaintiff.
Plaintiff Haren Somaiya present.
Adv. Vimal Tiwari present for defendant.
Copy of register Notice of Motion No. 100606 / 2024 filed by defendant.
Exh.07- Plaintiff filed reply to Notice of Motion No. 100606 / 2024.
Through Notice of Motion No. 100606 / 2024, defendant is seeking condonation of delay of 87 days in filing the Written Statement.
Perused Record.
Heard Adv. Ashish Gupta for plaintiff.
Heard Adv. Vimal Tiwari for defendant.
Perusal shows the relevant dates, as follows
On 15.01.2022, the Suit came to be filed.
On 11.01.2024, the defendant took the Suit on board and filed his Vakilpatra at Exh. 3. He also filed Notice of Motion for condonation of delay. Said Notice of Motion is accompanied with copy of Written Statement.
On 25.04.2024, the Plaintiff filed Affidavit of Service at Exh. 6, stating that, defendant is served by way of RPAD Summons on 12.10.2023.
It is case of defendant that, he was served with copy of the Plaint on 16.10.2023 at his native place. Plaintiff has filed false Suit for extorting money. Defendant was facing financial and health issues at its native place and hence, he could contact the lawyer at Mumbai only in January 2024. It caused delay of about 87 days in filing Written Statement. Said delay is not intentional. Defendant is having strong defenses to contest the Suit. Hence, said delay be condoned and the Written Statement be taken on record.
Through Reply at Exh.7, plaintiff objected on the ground that, the delay is not properly explained, there is no documents in support of the explanations given by the plaintiff. Notice of Motion being false, be dismissed with costs.
Reasons
As per Record of the Suit, defendant is served on 12.10.2023.
He preferred the Notice of Motion on 11.01.2024.
Thus, there is delay of 91 days.
As per amended First Schedule / Order 5 Rule 1 (1) of the Code of Civil Procedure provides that, defendant is required to file Written Statement within 30 days. In case he fails to file Written Statement, then for reasons to be recorded in writing and on payment of such cost as deems fit, the Court may allow him to file Written Statement, but within 120 days from date of service.
If any party, for technical reasons, is deprived of raising its case, then it may result in improper adjudication. That may lead to complexity in the dispute and may also lead to multiplicity of litigation. If that happens, then it drags the parties into further litigation, causing serious prejudices to them. Hence, it is always in the interest of justice that, both contesting parties are provided sufficient opportunities to raise their contentions and to prove their case.
Considering above discussion, it would be proper that, the delay is condoned and the defendant is permitted to participate in the Suit.
In given facts and circumstances, considering claim amount of Rs. 4,61,184/- and duration of delay of 91 days, it would be just and proper to allow said Notice of Motion by imposing cost of Rs. 5,000/-. Accordingly, following Order is passed ORDER
1. Notice of Motion No. 100606 / 2024, is allowed subject to payment of Cost of Rs. 5,000/- (Rs. Five Thousand Only) to plaintiff.
2. Defendant shall pay said Cost by next date.
3. If defendant pays the Cost to plaintiff by next date, then the delay caused to defendant, in filing their Written Statement shall stand condoned. Then, the Written Statement be taken on record, forthwith.
4. If defendant fails to pay the Cost, then the Suit shall proceed for evidence of plaintiff.
5. Parties be informed about their right to challenge this Order and period of limitation for it.
6. Order pronounced in Open Court.
7. Record of Notice of Motion shall be part of main Commercial Suit No. 100397 / 2023.
Suit adjourned to 09.09.2024 for compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 09-09-2024
Date: 09-09-2024
Business: Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Adv. Ashish Gupta present for plaintiff.
Plaintiff Haren Somaiya present.
Parties to take steps as per Order dt. 09.08.2024 in Notice of Motion No. 605 / 2024.
Suit adjourned to 09.10.2024 for compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 09-10-2024
Date: 09-10-2024
Business: Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Plaintiff Haren Somaiya present.
His counsel absent.
Adv. Vimal Tiwari present for defendant.
Exh.08- Draft Notice of motion filed by defendant for setting aside Order of cost.
Exh.09- Affidavit in support of Notice of motion.
Order- Leave is granted to register Notice of motion.
Parties to complete pleadings and to supply documents to each other. Parties should argue the pending applications, by next date, without fail. Else, put for necessary Order.
Suit adjourned to 28.11.2024 for notice of motion.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 28-11-2024
Date: 28-11-2024
Date: 19-12-2024
Business: Haren Somaiya Vs Bishmbhar Varma
Adv. Surve Rubina present for plaintiff.
Plaintiff Haren Somaiya present.
Adv. Jagriti Singh present for defendant
Exh.11- Written arguments filed by plaintiff on Notice of Motion No. 105442 / 2024.
Suit is kept back for argument.
Later on at 13.10 Hrs.
Adv. Surve Rubina present for plaintiff.
Plaintiff Haren Somaiya present.
Adv. Jagriti Singh present for defendant.
Order in Notice of Motion No. 105442 / 2024.
Heard both sides on Notice of Motion No. 105442 / 2024.
Perused Roznama Order Dt. 09.08.2024. Perused record.
Defendant has filed Notice of Motion No. 100606 / 2024 for condonation of delay of 87 days.
Plaintiff had opposed said Notice of Motion.
On 09.08.2024, said Notice of Motion was allowed by this Court subject to cost of Rs.5,000/-.
Defendant filed present Notice of Motion No. 105442 / 2024 for reduction of said cost.
Plaintiff has opposed present Notice of Motion.
In Order Dt. 09.08.2024, Court has observed that, claim amount is Rs. 4,61,184/-. Considering claim amount and duration of delay of 87 days, Court had imposed cost of Rs. 5,000/-.
Considering aforesaid aspects (claim amount and duration of delay), cost is just and proper. Hence, it requires no interference. Accordingly, following Order is passed -
ORDER
1. Notice of Motion No. 105442 / 2024, is rejected.
2. Defendant be informed about his right to challenge this Order and period of limitation for same.
3. Proceeding of Notice of Motion No. 105442 / 2024, is closed.
4. Order pronounced in Open Court.
5. Record of Notice of Motion No. 105442 / 2024 shall be part of Commercial Suit No. 100397 / 2023.
6. For convenience of Lawyers and Litigants, this Order is being uploaded in PDF format.
Parties to e-file their respective pleadings, Interim Applications (Chamber Summons, Notice of Motions, Summons for Judgment, replies, joinder, rejoinders, etc.), Written arguments, documents in OCR compatibility.
Suit adjourned to 31.01.2025 for steps.
Judge
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 31-01-2025
Date: 31-01-2025
Business: Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Plaintiff Haren Somaiya present.
His counsel absent.
Defendant side called, but absent.
Exh.12- Application filed by plaintiff for passing No Written Statement Order against defendant.
Defendant to file reply.
Exh.13- List of witnesses.
Parties to e-file their respective pleadings, Interim Applications (Chamber Summons, Notice of Motions, Summons for Judgment, replies, joinder, rejoinders, etc.), Written arguments, documents in OCR compatibility.
Suit adjourned to 19.03.2025 for evidence.
Judge
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 19-03-2025
Date: 19-03-2025
Business: Plaintiff present but advocate absent.
Matter stands Adj for evidence on 05-05-2025.
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 05-05-2025
Date: 05-05-2025
Business: Mr. Haren Bhagwandas Somaiya, plaintiff present.
Adv. Ashish P. Gupta for plaintiff present.
As the Court is busy in dictating judgment matter and argument matters, matter stands Adj for Recording evidence on 21.07.2025.
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 21-07-2025
Date: 21-07-2025
Business: Adv. Aashish Gupta for plaintiff present.
Plaintiff Haren Bhagwandas Somaiya is present.
Exh.14 Affidavit in lieu of examination in chief filed by the plaintiff.
O. Read and recorded.
Exh.15 List of documents filed by the plaintiff.
O. Seen and filed.
Advocate for plaintiff has given copy of affidavit to Intern Akarsh Dubey.
Matter stands Adj to 25-09-2025 for marking of documents/further examination in chief.
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 25-09-2025
Date: 25-09-2025
Business: Plaintiff Haren Somaiya is present.
Advocate for plaintiff absent.
Adv. Akarsh Dubey for defendant present.
Kept back. Later on at 01.40 pm
Adv. Ashish Gupta for plaintiff present.
Plaintiff Haren Somaiya is present.
O. Oath administered.
As notice of motion 5442/2024 was tendered by defendant for reduction of costs. But that NM was rejected long back. Hence, needless to say, suit shall proceed without written statement of defendant. Hence, application Exh.12 filed by plaintiff is allowed.
Exh.16
:
Certified copy of Evidence Affidavit filed in Complaint 992 of 2018.
Exh.17
Certified copy of Invoice dt. 01.04.2014.
Exh.18
:
Certified copy of Cheque No.875884 dt 20.03.2018
Exh.19
:
Certified copy of dishonored memo dt. 22.03.2018.
Exh.20 Colly
:
Certified copy of Notice dt. 23.03.2018 along with Certified copy of Postal Receipt, Tracking report.
Further examination in chief is recorded and completed.
As suit is proceeded without written statement of defendant, hence, right cross examination of defendant stands forfeited.
Matter stands Adj to 06-11-2025 for further evidence of plaintiff.
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 06-11-2025
Date: 06-11-2025
Business: Plaintiff - Haren Somaiya is present.
Adv. Ashish Gupta for plaintiff present.
Adv. Vimal Tiwari for defendant present.
Exh.21 Evidence closure pursis filed by plaintiff. O-Seen.
As no written statement order is already filed against defendant. So there will be no stage of evidence of defendant.
Matter stands Adj to 11-12-2025 for final argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 11-12-2025
Date: 11-12-2025
Business: Adv. Aashish Gupta for plaintiff present.
Plaintiff Mr. Haren Somaiya is present.
Adv. Vimal Tiwari h/f Adv. M. S. Singh for defendant present.
Exh.22 Written notes of argument filed by plaintiff.
Copy is served on other side.
Matter stands Adj to 19-01-2026 for filing written note of argument by defendant/oral argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 19-01-2026
Date: 19-01-2026
Business: Plaintiff Mr. Haren Somaiya is present
Advocate for plaintiff absent.
Adv. Vimal Tiwari for defendant present.
Plaintiff submit that due to ailment, it is not possible for his advocate to appear before this Court. Advocate for defendant submit that short time may be granted for argument as his Senior is not available. Considering above situation, matter stands adjourned for argument.
Matter stands Adj to 07-02-2026 for argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 07-02-2026
Date: 07-02-2026
Business: Plaintiff Haren Somaiya is present.
Advocate for plaintiff is absent.
Adv. Rajiv Pal h/f Adv. M. S. Singh for defendant present.
Later on at 12.50 pm
Same appearance for plaintiff and defendant.
Plaintiff submit that his advocate is out of town.
Exh.23 Written notes of argument filed by defendant.
Copy is served on plaintiff.
Matter stands Adj to 26-02-2026 for oral argument by plaintiff.
Next Purpose: ARGUMENTS
Next Hearing Date: 26-02-2026
Date: 26-02-2026
Business: Adv. Ashish Gupta for plaintiff present.
Plaintiff Haren Somaiya is present.
Adv. Akarsh Dubey h/f Adv. M. S. Singh for defendant present.
Matter stands Adj to 20-03-2026 for argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 20-03-2026
Date: 20-03-2026
Business: Plaintiff Mr. Haren Somaiya is present.
Adv. Akarsh Dubey h/f Adv. M. S. Singh for defendant present.
Kept back for Judgment.
Exh.24 Judgment
FRSR following order is passed
ORDER
1. Commercial Suit No. 397/2023 is decreed with costs.
2. Plaintiff is entitled to recover Rs.4,61,184/- (Rs. Four Lakhs Sixty One Thousand One Hundred and Eighty Four Only) from defendant with 9% interest per annum from date of suit till realization of entire amount.
3. Defendant, within three months from date of this Judgment, shall pay amount as mentioned in clause no. 2 of this Judgment to plaintiff with interest.
4. Decree be drawn up accordingly.
5. Judgment is dictated and pronounced in open Court.
6. After compliance and period of Appeal, Sheristedar and AS to consign Record of the suit, to Record Room.
Nature Of Disposal: JUDGMENT
Disposal Date: 20-03-2026