Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010011282019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.447 OF 2019
IN
S.C. SUIT NO.5480 OF 2007
M/S. SUPER FIBRES ]… Plaintiff
V/s.
BDH INDUSTRIS LTD. ]... Defendants
Appearances :-
Ms. Snehal, Ld. Adv. for plaintiff.
Mr. K.K. Maheshwari, Ld. Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED :3rd March, 2020
ORAL ORDER
1. Plaintiff took out this Notice of Motion for setting aside
Order of dismissal dated 15.12.2018 and for restoration of suit.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, reply of defendants and rejoinder of plaintiff. Heard both
sides.
MHCC01-001128-2019
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3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether Order of dismissal of suit
dated 15.12.2018 for want of
prosecution can be set aside?
In the affirmative.
2. Whether suit can be restored ? In the affirmative.
3 What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the plaintiff that the suit was
filed for recovery of amount specifically mentioned in the plaint.
Plaintiff had filed evidence alongwith the compilation of documents on
27.10.2017. There is one more suit filed by the plaintiff against the
defendants being Suit No.6625 of 2004. Both the suits were adjourned
time to time together. There was some descrepancy in the index of Suit
No.6625 of 2004. There was no descrepancies in the index of this case.
This suit was posted for evidence. Suddenly grievance was made on
11.10.2018. The matter was adjourned to 13.11.2018 and to
15.12.2018 for dismissal. On 15.12.2018 partner of the plaintiff had
gone to native place for attending a marriage in the family. Therefore,
partner of the plaintiff did not remain present before the Court on
15.12.2018. Advocate for plaintiff also did not remain present before
the Court on 15.12.2018. Consequently, the order of dismissal of suit
was passed on 15.12.2018. Therefore, Notice of Motion be allowed as
prayed for.
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5. In brief, it is contention of the defendants that a Notice of
Motion is barred by law of Limitation. The suit is dismissed on
15.12.2018. Notice of Motion is taken on 24.1.2019. Therefore on this
ground itself the Notice of Motion be dismissed. All other contentions
are denied. Therefore, Notice of Motion be dismissed.
6. In brief, it is the contention of plaintiff in rejoinder that
plaintiff reiterates the contentions raised in the Notice of Motion and
denies contentions raised in the reply.
7. Perused Roznama dated 11.1.2018. On that date PW 1
tendered evidence affidavit alongwith documents. Thereafter matter
adjourned for say on compilation of documents. Perused Roznama
dated 13.6.2018. It appears from the same that the Learned Advocate
for defendants had submitted that index tendered by the plaintiff is not
proper pertaining to the documents of invoices of another place on
record alongwith extract with ledger account and the office copy of the
letter in the compilation of the documents Exh.5 by the plaintiff.
Therefore, as per said Roznama dated 13.6.2018 plaintiff was directed
to re-arrange the documents by proper index with separate clarification
and matter adjourned for admission and denial of the documents and
further examination in view of PW 1 on 17.7.2018. Perused Roznama
dated 17.7.2018. On oral request of defendant's advocate matter
adjourned for cross-examination of DW 1, thereafter matter adjourned
from 17.7.2018 to 28.8.2018 for cross-examination of PW 1. On
28.8.2018 Presiding Officer was on mediation training therefore matter
adjourned on 11.10.2018. Perused Roznama dated 11.10.2018.
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Advocate for defendant was present. PW 1 and Advocate of plaintiff
were absent therefore, it is directed to keep the suit for order of
dismissal for non compliance of order dated 13.6.2018. Perused
Roznama dated 13.11.2018 none was present for plaintiff. Advocate for
defendant was present. Matter adjourned for dismissal order on
15.12.2018. On 15.12.2018 advocate for plaintiff was present.
Advocate for defendant present. It is mentioned in the Roznama dated
15.12.2018 plaintiff did not comply with the direction issued on
11.10.2018 for a proper indexing the compilation of documents to be
tendered on record. Therefore, under Order 39 Rule 11 of the Code of
Civil Procedure suit dismissed for default for non compliance of said
order. It means the suit is dismissed on 15.12.2018 for non compliance
of order dated 13.6.2018 in respect of proper indexing the compilation
of documents tendered by the plaintiff.
8. Perused evidence affidavit of PW 1 Mr. Bhanu Anand Shetty
Exh.4. Perused compilation of documents of the plaintiff Exh.5.
Evidence affidavit of PW 1 and compilation of ducments are filed on
record on 11.10.2018. Plaintiff filed documents alongwith compilation
Exh.5.
9. Order of dismissal of suit in default is dated 15.12.2018.
Notice of Motion is taken out on 24.01.2019.
10. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
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11. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
12. Admittedly the plaintiff did not comply with directions
dated 13.6.2018. Considering the nature of the suit and reason of
plaintiff for non appearing before the Court on 15.12.2018, I am of the
opinion that the order dated 15.12.2018 can be set aside and plaintiff
can be granted one opportunity to comply the said direction dated
13.6.2018 and to proceed with the suit by imposing some costs. Hence,
I record my findings to point Nos.1 & 2 in the affirmative and point
No.3 the Notice of Motion is allowed as per final order. Hence
following order:
ORDER
Notice of Motion 447/19 is allowed as under :
1. Order of Dismissal of suit dtd. 15/12/2018 is hereby set
aside subject to costs of Rs. 03,000/-.
2. Time Granted till 08/04/2020 at 02.45 p.m. to deposit
the said cost in the Court or it be given to the
defendant.
3 After Compliance of order of the costs, the suit be restored
and posted for compliance of directions dtd. 13/06/2018
by the Plaintiff.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 03/03/2020 City Civil Court, Gr. MUMBAI
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Dictated on0 : 03/03/2020.
Transcribed on : 11/03/2020.
Checked on : 16/03/2020.
Signed on : 16/03/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Due to Covid-19 lockdown, the
Court was not functioning and
therefore upload on
13.06.2020 at 02.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 03.03.2020
Judgment/order signed by P.O. on 16.03.2020
Judgment/order uploaded on 13.06.2020
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