Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTOCE OF MOTION NO.448 OF 2019
IN
NOTICE OF MOTION NO.3509 OF 2018
IN
S.C.SUIT NO.9777 OF 1987
(HIGH COURT SUIT NO.604 OF 1987)
Nensee Constructions Pvt.Ltd. … Applicant
IN THE MATTER BETWEEN
Madhavsingh Gordhandas ... Plaintiff
Versus
1(a) Kishore Khimji Ved & Ors. ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 26th JUNE, 2019
Advocate Mr. Mehta for plaintiff.
Advocate Mr.Kunal Zha for defendant no.9.
O R D E R
1. This Notice of motion is taken out by defendant no.9 for
condoning the delay caused in filing notice of motion No.3509 of 2018.
Defendant no.9 has filed his affidavit in support of the notice of motion
contending that he had filed notice of motion No.3509/2018 for orders
for recalling various orders referred in prayer clause(a) of said notice of
motion passed by this Court. He has taken out said notice of motions
on the various grounds mentioned in the affidavit filed in support of
notice of motion no.3509/2018. However, delay was caused for filing
said notice of motion. According to defendant no.9, 18 months delay
was caused for challenging order dated 19/06/2017, 15 months delay
-- 1 of 8 --
:2: NM.448/19 IN SUIT9777/87
was caused for challenging order dated 21/09/2017 and so far order
dated 28/04/2018 is concerned there was delay of around 9 months.
According to defendant no.9 there was delay of about 7 months for
challenging order dated 08/06/2018 and there was delay of about 8
months caused for challenging order dated 11/07/2018.
2. According to defendant no.9, he has extremely good case
on merits and there is every possibility for succeeding in said notice of
motion and the delay was caused due to unforeseen circumstances,
which were beyond control of defendant no.9 and therefore, it is not
only desirable but necessary to condone said delay. Further according
to defendant no.9 no prejudice will be caused to the parties on
condonation of such delay which is deliberate or willful. According to
defendant no.9, there is no negligent on the part of defendant no.9 or
his advocate in filing notice of motion No.3509/2018 beyond the period
of limitation.
3. According to defendant no.9, even otherwise in view of the
order dated 04/01/2019 passed by Hon'ble Supreme Court in SLP
(Civil) No.33139 of 2018 whereby the Hon'ble Supreme Court has
made it clear that it shall be open to defendant no.9 to take all such
contentions which are available in law while the suit is decided on
merit. It is contention of defendant no.9 that as a matter of judicial
discipline and propriety, it is incumbent on the part of this Court to set
aside the orders which are subject matter of notice of motion
No.3509/2018. Therefore, the delay caused for filing said notice of
motion is necessary to be condoned. Further it is contended that the
law with regard to condonation of delay is well settled that Court
should adopt liberal approach as technicalities cannot be permitted to
-- 2 of 8 --
:3: NM.448/19 IN SUIT9777/87
prevail over substantial justice. With the help of those contentions
defendant no.9 has prayed to make absolute the notice of motion.
4. Roznama dated 31st January, 2019 shows that advocate for
plaintiff submitted that reply of notice of motion no.3509/2018 be
treated as reply to this notice of motion. The contentions raised in reply
of notice of motion No.3509/2018 are as under;
5. Plaintiff Mr.Madhavsingh Gordhandas Ved has resisted the
notice of motion by filing his affidavit of reply by contending that all the
facts mentioned in the affidavit which is filed in support of notice of
motion are misconceived. It is contended that present notice of motion
is not maintainable. It is alleged that defendant no.9 is intending to
recall the orders passed by this Court without giving any valid, cogent
or satisfactory reasons. Those orders would have been challenged by
defendant no.9 before Appellate Court and not before this Court.
According to plaintiff the notice of motion is barred by limitation and it
is brought to the notice that when orders dated 28/04/2017,
21/09/2017 and 08/06/2018 were passed by the Court, advocate for
defendant no.9 was present before the Court. Further said advocate was
made aware of those orders. According to plaintiff, if defendant no.9 is
aggrieved by those orders, he would have preferred appropriate
proceedings within prescribed time. It is contended that previously also
defendant no.9 has made identical allegations against his previous
advocate and junior representing him. It is contended that Notice of
Motion No.1303/2011 was filed by defendant no.9 for rejection of
plaint and it was dismissed by Court with costs of Rs.10,000/.
Thereafter, defendant no.9 filed Civil Revision Application (Stamp)
No.6384/2017 challenging the order dated 20/8/2016. Defendant no.9
-- 3 of 8 --
:4: NM.448/19 IN SUIT9777/87
has also filed Civil Application No.288/2017 for condonation of delay.
Both those proceedings are pending before the Hon'ble High Court.
6. Plaintiff has contended that defendant no.9 has made false
allegations against its advocates because when the orders in question
were passed, advocates for defendant no.9 were present and they were
aware of the orders passed by the Court. It is further contended that on
29/09/2017 advocate for defendant no.9 was duly served with affidavit
of evidence of plaintiff along with compilation of original documents.
In said affidavit plaintiff has specifically averred few facts. It is pointed
out that on 13/09/2017 when the matter was listed for evidence of
defendant no.9 in respect of two additional issues, advocate appearing
on behalf of defendant no.9 sought adjournment on the ground of
pending Civil Revision Application before the Hon'ble High Court.
Thereafter, advocate for defendant no.9 moved Hon'ble High Court for
seeking stay to the further proceedings of this suit. However, Hon'ble
High Court declined to pass such order. Hence, according to plaintiff
defendant no.9 and his advocates were aware of the orders passed by
this Court and the orders passed by Hon'ble High Court.
7. It is alleged that defendant no.9 deliberately choose not to
crossexamine plaintiff on 02/12/2017, 05/01/2018, 02/04/2018 and
21/04/2018. Accordingly as a last chance matter was posted for cross
examination of plaintiff to 08/06/2018 observing that failing to it
defendant's evidence was to be closed. Again on 08/06/2018 defendant
no.9 sought adjournment without any genuine reason. Said application
was rejected by the Court and no cross order was passed against
defendant no.9. It is contended that defendant no.9 has pleaded self
contradictory case and has put blame on junior advocates without
-- 4 of 8 --
:5: NM.448/19 IN SUIT9777/87
naming them for not appraising defendant no.9 for its counsel about the
facts of the suit.
8. It is contended that issues were originally framed on
17/03/2015 and additional issues were framed vide order passed in
Notice of Motion No.3555/2015 on 28/04/2017. With the help of those
contentions plaintiff has prayed to dismiss the notice of motion.
9. I have heard plaintiff's advocate at length about notice of
motion No.448/2019. It is pertinent to note here that on 10/06/2019
when the matter was fixed before this Court it was ordered i.e.
defendant no.9 will not argue the notice of motion, Court will hear the
plaintiff's argument and will decide the notice of motion on merits.
Thereafter, this suit was adjourned to 24/06/2019. On said date also
advocate for defendant no.9 sought adjournment. However, in view of
the order dated 10/06/2019 this Court was unable to grant
adjournment because of the fact that this suit is pending since 1987 and
defendant no.9 was not diligent in the matter. Plaintiff's advocate
referred para nos.2 and 3 of the affidavit filed by defendant no.9 in
support of this notice of motion and argued that defendant no.9 has not
properly explained daytoday delay caused for filing of notice of
motion No.3509/2018. Hence, according to plaintiff's advocate this
notice of motion is necessary to be dismissed. On 24/06/2019 advocate
Mr.Kunal Zha was present before the Court on behalf of defendant no.9
and advocate Mr.Zha submitted that matter should be adjourned
because director of defendant no.9 was not present in the Court. In
notice of motion No.3509/2018 defendant no.9 has prayed for recalling
various orders passed by this Court which are already referred above.
While deciding Notice of Motion No.3509/2018 I have already come to
-- 5 of 8 --
:6: NM.448/19 IN SUIT9777/87
the conclusion that those orders required to be passed by the Court due
to negligent conduct of defendant no.9. Said conduct continued and
defendant no.9 even has not taken care to argue this notice of motion
filed for condonation of delay. In notice of motion no.3509/2018
defendant no.9 has made wild allegations against the previous lawyers
who had represented defendant no.9 and according to defendant no.9
various orders passed by Court are necessary to be set aside as lawyers
of defendant no.9 has not informed him about the progress in the
matter. Communication between lawyers and clients is privileged
communication. Therefore, this Court cannot go into detail that what
was informed by previous advocate of defendant no.9 to defendant
no.9. Further in the affidavit filed in support of notice of motion
no.3509/2018 Director of defendant no.9 has taken a stand that it was
neither imperative nor desirable for director of defendant no.9 to attend
the Court. It seems that Directors of defendant no.9 have presumed
themselves above Court of law and therefore, the contention is raised
that it was neither imperative nor desirable for those directors to attend
Court. Party who is having such a attitude, in my opinion, cannot have
any help from the Court of law. Director of defendant no.9 has
contended that on account of busy schedule said director could not
attend the Court. This is the unfortunate case which is pending for 32
years and again parties are having the attitude that they are busy, I am
unable to understand how such a stand can be taken on behalf of
defendant no.9. For all above reasons, I find that no reasonable ground
is made out by defendant no.9 for condoning the delay caused for filing
notice of motion no.3509/2018. It is pertinent to note here that
defendant no.9 was not aware and careful about said delay therefore,
when plaintiff has brought it to the notice to defendant no.9 that delay
is caused for filing notice of motion no.3509/2018, this notice of
-- 6 of 8 --
:7: NM.448/19 IN SUIT9777/87
motion is taken out for condoning the delay caused for filing said notice
of motion. Thus, filing of this notice of motion no.448/2019 amounts
to give go by to the defence raised by plaintiff's reply to notice of
motion No.3509/2018. If really defendant no.9 or its directors would
have been diligent they would have prayed for condoning the delay
prior to filing notice of motion no.3509/2018. Any how, I have come to
the conclusion that due to negligent attitude of defendant no.9 this
Court is required to pass various orders against defendant no.9 and
further even though this Court has specifically directed defendant no.9
to argue the matter on 24/06/2019 again adjournment was sought. For
all above reasons, I find that notice of motion no.448/2019 cannot be
allowed. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion No.448/2019 stands disposed off/dismissed.
Sd/
(K.P.NANDEDKAR)
26/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 26/06/2019
Transcribed on : 04/07/2019
Signed by HHJ on : 06/07/2019
-- 7 of 8 --
:8: NM.448/19 IN SUIT9777/87
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
06/07/2019 01.45PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 26/06/2019
Judgment/order signed by P.O on 06/07/2019
Judgment/order uploaded on 06/07/2019
-- 8 of 8 --