Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.476/2020 in Suit No.4588/2011
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 476 OF 2020
CNR NO.: MHCC01-001180-2020
SUIT NO. 4588 OF 2011
(HIGH COURT SUIT NO. 2642 OF 2011)
Anju Akhil Rastogi ...Plaintiff
Versus
The Bombay Mercantile Co-Op. Bank Limited ...Defendant
Appearances:-
Advocate Ms. Diamondwala for plaintiff.
Advocate Mr. Laxman Vyankatesh for defendant No.4.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 21st FEBRUARY, 2020.
ORAL ORDER
Defendant No.4 has stated that he has filed Commercial Suit
No.405 of 2016 praying for restoration of Gala to him. He has further
stated that he has filed Criminal Complaint No.350/SW/2013 against
defendant No.3 and his co-conspirators. Defendant No.4 has further
stated that subsequent to forcible possession of his Gala, defendant
failed to re-route the mails and other communications received in his
name and in the name of his Firm including the summons issued by this
Court to his residential address which is in their possession and known
to defendant No.1. He has further stated that service of summons to
him and his firm did not happen. For the said non-service of the
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summons issued by this Court he blamed the defendant No.1 and their
employees who effectively acted as obstructionists. Defendant No.4 has
further stated that after receiving the Writ of Summons and copy of the
Plaint in Suit No.405 of 2016, plaintiff ought to have known correct
mailing address of defendant No.4. He has further stated that therefore
the affidavit filed by plaintiff that Writ of Summons on defendant No.4
or his firm could not be effected due to non-availability of his correct
mailing address is a lie. He prayed to set aside Ex-parte order passed
against him.
2. Plaintiff has filed reply to this Notice of Motion and stated that
applicant has not explained the delay and no relief of condonation of
delay in filing written statement prayed. Plaintiff has further stated that
defendant No.4 has attempted to give a purported justification on the
alleged delay of 9 years.
3. Plaintiff has further stated that in the year 2017, the defendant
No.4 learnt that plaintiff has filed the present Suit through Written
Statement but it is after lapse of 3 years from the knowledge of the
defendant No.4 that the present baseless application is filed. Plaintiff
denied material allegations and prayed to dismiss the Notice of Motion.
4. It appears defendant No.4 is served with Suit Summons by paper
publication as per the roznama dated 03.02.2017. It is pertinent to see
that defendant No.4 has specifically stated that in the year 2010,
defendant No.1 took possession of his Gala from him and locked it up
and since that time he was denied access to his said property by
defendant No.1. Therefore, it appears that even though summons sent
on such address or published then also they are not serving upon
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defendant No.4 as the premises was locked and he was not in
possession of the same. Defendant No.4 has stated that his address was
known to plaintiff as he has filed another suit against plaintiff having
Commercial Suit No. 405 of 2016 and suit summons should have been
sent on that address. It appears in all the affidavits of Services of
Chamber Summons and Notice of Motion regarding defendant No.4 it is
stated that Company has shifted. There is nothing to show that he was
served suit summons on his address stated in the suit filed by him.
Hence, it appears defendant No.4 not served with suit summons.
5. Considering the circumstances that yet evidence has not started in
this case and issues are not framed. In such circumstances, if defendant
is allowed to file Written Statement, it will not cause any harm or
prejudice to other parties. Hence, it will be in the interest of justice to
allow Notice of Motion to file Written Statement and set aside Ex-parte
order. Hence, following Order :-
ORDER
1. Notice of Motion No.476 of 2020 is allowed and defendant No.4
is directed to file Written Statement within 30 days from the date
of this Order.
2. Notice of Motion No.476 of 2020 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 21.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 21.02.2020
Transcribed on : 21.02.2020
Signed on : 21.02.2020
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:4: N.M. No.476/2020 in Suit No.4588/2011
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.02.2020 At 1:52 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
21.02.2020
Judgment/Order signed by P.O. on 21.02.2020
Judgment/Order uploaded on 25.02.2020
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