Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 465/19 SUM.SUIT 389/18 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOITON NO. 465 OF 2019
IN
SUMMARY SUIT NO.389 OF 2018
(CNR NO.: MHCC010011552019)
Kantilal Champalal Kothari ...Plaintiff
Versus
Orbit Constructions & Anr. ...Defendants
Appearances:
Advocate Mr.Vora for the Plaintiff.
Advocate Mr.Khatri for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATED : 19TH AUGUST 2019
ORDER
1. This is notice of motion for condonation of delay in filing
vakalatnama on behalf of defendant No.2 and to set aside the order of
exparte dated 14th November, 2018 with additional prayer of striking
out the name of defendant No.2 from the cause title of this suit.
2. Heard Ld. Counsel for defendant No.2 and Ld. Counsel for
plaintiff.
3. From the material on record following points arise for my
determination and my findings with reasons are as follows:
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NM 465/19 SUM.SUIT 389/18 2
POINTS FINDINGS
1. Whether there is sufficient cause
to condone the delay of filing
vakalatnama by defendant No.2 and
to set aside order to proceed exparte
dated 14th November, 2018 ?
Yes
2. Whether there is sufficient reason
to strike out the name of defendant
No.2 from the cause title of plaint?
No
3. What order? As per final order
REASONS
AS TO POINT NOS.1 to 3
4. The Ld. Counsel for defendant No.2 had submitted that plaintiff
has filed this suit against partnership firm alleging that defendant No.2
is a partner of that firm. The defendant No.2 had retired from the said
partnership firm in the year 2005 and thereafter defendant No.2 had no
concerned with the partnership firm. Plaintiff has alleged that the
transaction between him and partnership firm/defendant No.1 took
place on 02/02/2010 that is much after retirement of defendant No.2
from the partnership firm. Defendant No.2 was arrested by police and
many cases were registered against him. The suit summons was served
on the incorrect address to defendant No.2. In last week of December,
2018 the defendant No.2 came to know about this suit and immediately
he contacted his advocate and had filed this present application.
Defendant no. 2 is not necessary party in this suit and therefore his
name should be strike out from the array of defendants.
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NM 465/19 SUM.SUIT 389/18 3
5. The Ld. Counsel for plaintiff has resisted this application by filing
reply. The Ld. Counsel for plaintiff has submitted that the suit summons
was served upon defendant No.2 on 18/04/2018 by the court bailiff.
Inspite of such service defendant No.2 choose to remain absent and
therefore suit is proceeded exparte. The defendant No.2 has taken
ground of delay but as per the provisions of law, has not explained the
delay of each and every day. The defendant No.2 has taken a casual
approach and has not shown any reasonable cause for the condonation
of delay. As far as the prayer of striking out the name of defendant No.2
from the cause title is concerned, defendant No.2 was the person who
has initiated this transaction. Due to active participation of defendant
No.2, the transaction was completed therefore defendant No.2 is proper
and necessary party to this suit.
6. The defendant no. 2 has resisted the reply of the plaintiff by filing
rejoinder to the reply. He reiterated his contention about service of suit
summons at incorrect address. He also contended that he is not the
necessary party to this suit. The Ld. Counsel for defendant no. 2 had
submitted that the defendant no. 2 had filed the copy of deed of
retirement, which shows that defendant no. 2 had retired on 22nd April,
2005 and therefore he is not the necessary party to this suit. To support
her contentions ld. Counsel relied on Mumbai International Airport Pvt.
Ltd. Versus Regency Convention Centre and Hotels Pvt Ltd. & Ors,
(2010) 7 SCC 417.
7. Though it is bounded duty of defendant No.2 to explain day to
delay but the court has to see that no one has put to injustice due to
failure to prove such day to day delay. It is undisputed that defendant
No.2 has served on 18/04/2018 and he was supposed to file his
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NM 465/19 SUM.SUIT 389/18 4
appearance within 10 days from 18/10/2018. It is undisputed that
there is delay in filing the vakalatnama. Defendant no. 2 intends to
contest this suit, in such circumstances defendant no. 2 should be given
fair chance to participate in the proceedings. Without taking any hyper
technical view and taking into consideration the concept of fair trial the
delay can be condoned subject to appropriate costs. If the delay is
condoned then the setting aside of exparte order has to follow.
8. The defendant no. 2 has prayed to strike out his name from the
array of the defendant. As per Order I Rule 10 (2) of the Code of Civil
Procedure, 1908, the Court may struck out the name of the plaintiff or
defendant who is improperly joined. In plaint at paragraph 2 plaintiff
has specifically alleged that defendant no. 2 approached the plaintiff to
provide advance/loan for business purpose and upon the request of the
defendant no. 2. The averments shows that on representation of
defendant no. 2 plaintiff has given the alleged loan. This averment on
face makes the defendant no.2 necessary party in this suit. Whether
defendant no. 2 retired and he had no concerned with the partnership
firm defendant no. 1 is the issue which cannot be decided at this
preliminary stage of the suit. In the case of Mumbai International
Airport Pvt Ltd (Supra) the Hon’ble Supreme Court in paragraph 13
observed that. “the general rule in regard to impleadment of parties is
that the plaintiff in a suit, being dominus litis, may choose the persons
against whom he wishes to litigate and cannot be compelled to sue a
person against whom he does not seek any relief but this general rule is
subject to provisions of Order I Rule 10 of the Civil Procedure Code,
1908.” Further in paragraph 25 the Hon’ble Supreme Court observed,
“In other words, the court has the discretion to either to allow or reject
an application of a person claiming to be a proper party, depending
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NM 465/19 SUM.SUIT 389/18 5
upon the facts and circumstances and no person has a right to insist that
he should be impleaded as a party, merely because he is a proper
party.” After perusal of whole authority it is respectfully submitted that
authority is applicable to this case and plaintiff has satisfactorily shown
that defendant no. 2 is the proper and necessary party to this suit and
therefore the prayer of the defendant no. 2 to struck out his name from
the array of the defendant cannot be granted. Accordingly point No.1
is answered in affirmative and point no. 2 is answered in negative and
following order is passed.
ORDER
1. Notice of Motion No.465/2019 is allowed.
2. The delay for filing vakalatnama of defendant No.2 is condoned
subject to cost of Rs.5,000/ (Rs.Five Thousand only)to be paid to the
plaintiff on or before next date.
3. On payment of cost as directed above, the order to proceed
exparte dated 14th November, 2018 is set aside and vakaltnama shall be
taken on record.
4. Notice of Motion No.465/2019 stands disposed of accordingly.
(M.S.LONE)
Judge,
Date: 19/08/2019 City Civil Court,Gr. Bombay
Dictated on : 19/08/2019
Transcribed on : 20/08/2019
Signed on : 20/08/2019
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NM 465/19 SUM.SUIT 389/18 6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
16/09/2019 at 11.15p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of Judgment/Order 19/08/2019
Judgment/Order signed by P.O. on 20/08/2019
Judgment/Order uploaded on 16/09/2019
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