Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Notice of Motion No.488/2019
MHCC010012372019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO. 488 OF 2019
(CNR NO.MHCC01-001237-2019)
IN
SUIT NO. 7720 OF 2002 (DISPOSED OF)
Bank of Bahrain and Kuwait B.S.C. )...Plaintiff
Versus
Alpic Securities Ltd. and another )...Defendants
Appearance :-
Learned Advocate Sakina Ruhawala for plaintiff.
Learned Advocate Anjal Amin for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 04/09/2024.
O R D E R
1 This notice of motion is taken out by plaintiff for setting
aside order passed on 19/11/2018 and restoration of Suit No.7720 of
2002 with condonation of delay. The record shows that the suit bearing
No.7720 of 2002 filed by plaintiff came to be dismissed in default on
18/02/2014. Plaintiff took out notice of motion No.958 of 2014 for
restoration of the same which was allowed on 02/11/2018. As per the
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..2.. Notice of Motion No.488/2019
order in notice of motion No.958 of 2014, the suit bearing No.7720 of
2002 came to be restored subject to payment of costs of Rs.6,000/- to
the defendants and plaintiff was also directed to make necessary
amendments regarding change of name of defendant No.1 company
and Official Liquidator. It appears that as per the roznama dated
19/11/2018, inconsequence of failure to comply the order dated
02/11/2018 in notice of motion No.958 of 2014, the Court has ordered
that the order dated 02/11/2018 will not take effect. Thus, inference is
that the Court has treated the notice of motion No.958 of 2014 as
dismissed.
2 Plaintiff has come with the contention that the order on
notice of motion No.958 of 2014 is passed on 02/11/2018, but, date
was not given and it was given subsequently. Therefore, the advocate of
plaintiff lost track of dates and skipped the attention towards this case.
It is contended that the non-compliance of order passed in notice of
motion dated 02/11/2018 was neither willful nor deliberate. As soon as
they came to know about the order, they took out instant notice of
motion for recall of order.
3 Defendant No.1 resisted the contention by filing reply
contending that plaintiff had blamed the then advocate, but according
to defendant No.1, the conduct of plaintiff shows that it was not
serious. Plaintiff has not paid the costs in time and did not comply the
order. Defendant No.1 has denied all the contention of the plaintiff by
giving detailed reply and prayed for dismissal of notice of motion with
compensatory costs. Defendant No.2 i.e. Official Liquidator filed reply
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..3.. Notice of Motion No.488/2019
resisting the contention that plaintiff is not entitled for the relief, it has
denied that the non-compliance on the part of plaintiff was neither
willful nor deliberate.
4 Heard plaintiff and defendant No.1 at length. The learned
advocate for defendant No.2 remained absent.
5 It appears from the order in notice of motion No.958 of
2014 that plaintiff was directed to comply order on or before next date
and the next date was fixed on 16/11/2018. On that date, plaintiff and
its advocate remained absent. The Court had granted extension of 2
days on 16/11/2018, with caution that if plaintiff fails to comply the
order, the order in notice of motion will not remain in force. On
19/11/2018, again plaintiff and its advocate remained absent,
therefore, Court has passed order that inconsequence of failure to
comply the order in notice of motion No.958 of 2014 dated
02/11/2018, the order in notice of motion No.958 of 2014 will not take
effect. Therefore, notice of motion No.958 of 2014 presumed to be
disposed of for non-compliance. Now plaintiff has taken out instant
notice of motion for setting aside order dated 19/11/2018, plaintiff also
took out chamber summons in compliance of second part of order in
notice of motion No.958 of 2014. it also reveals from the record that
defendants have paid Rs.3,000/- to the Official Liquidator in the month
of January-2019, which was after passing of order dated 19/11/2018. It
is also submitted that plaintiff has tried to pay remaining costs of
Rs.3,000/- to defendant No.1 as it was after passing of order dated
19/11/2018, it was not accepted and till date same is not paid.
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..4.. Notice of Motion No.488/2019
6 Plaintiff and defendant No.1 have tendered written notes of
argument in addition to their oral submission. Defendant No.2 Official
Liquidator remained absent, after filing of reply. It appears that there is
a delay on the part of plaintiff to pay costs and this Court has ample
power allowing the defendant to pay costs by extending time as per the
provisions of Section 148 of Code of Civil Procedure. However, it is the
contention of defendant No.1 that the conduct of plaintiff is sufficient to
draw inference that plaintiff bank is not serious to proceed with the suit
and he has filed another Miscellaneous application bearing No.86 of
2017 for withdrawal of amount deposited. Plaintiff has filed this suit
against defendants, claiming that plaintiff bank has provided financial
assistance in the form of share capital for joint venture company of
defendants and funds of plaintiff is involved in the suit for recovery of
amount, suit claim is raised against defendant No.1 only contending
that defendant No.2 has merged into an entity of defendant No.1 with
effect from 01/04/1998. Considering the fact that it is a suit for
recovery of amount, which is substantial right, if plaintiff is deprived
from proceeding the suit for his failure to comply the order in notice of
motion, substantive right of plaintiff may be defeated. Thus, I am of the
view that fair opportunity deserves to be given by enlarging time to pay
the costs of Rs.3,000/- which is required to be paid by defendant No.1.
7 So far as delay in taking out this notice of motion is
concerned, plaintiff is permitted that as the advocate lost track of suit,
plaintiff could not get the order of Court in notice of motion and this
notice of motion is taken out on 06/01/2019. The delay deserves to be
condoned subject to payment of costs. As defendant No.2 has remained
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..5.. Notice of Motion No.488/2019
absent after filing reply, I am of the view that defendant No.1 only is
entitled for further payment of costs. Hence, I am of the view that this
notice of motion deserves to be allowed subject to payment of costs of
Rs.10,000/- in addition to earlier costs of Rs.3,000/-. In the result, I
proceed to pass following :-
ORDER
1. Notice of Motion No.488 of 2019 in Suit No.7720 of
2002 (Disposed of), is hereby allowed subject to
payment of costs of Rs.10,000/- to be paid to
defendant No.1 within one month from the date of
this order.
2. Plaintiff is also permitted to pay the costs of
Rs.3,000/- to defendant No.1 as per the order in
notice of motion No.958 of 2014, within one month
from the date of this Order.
3. Delay stands condoned after payment of costs of
Rs.10,000+Rs.3,000/- i.e. Rs.13,000/- and Suit
No.7720 of 2002 stands restored.
4. In case of failure to pay the costs within stipulated
period, the instant notice of motion shall be treated as
dismissed without reference to this Court.
5. Notice of motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 04/09/2024. Court Room No.84
Dictated on : 04/09/2024.
Transcribed on : 04/09/2024.
Signed by HHJ on : 05/09/2024.
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..6.. Notice of Motion No.488/2019
“Certified to be true and correct copy of the original signed order”.
05/09/2024
at about 05.15 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 04/09/2024
Order signed by Hon'ble Judge on : 05/09/2024
Order uploaded on : 05/09/2024
at about 05.15 p.m.
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