Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 289/18 SUIT NO.6333/2004 1
CNR.NO.MHCC010012972018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.289 of 2018
IN
S.C. SUIT NO. 6333 of 2004
City & Industrial Development Corporation ...Plaintiff
Versus
Trymbak N Dudhate & Anr. ...Defendants
Smt.P.M.Bhansali advocate for the Plaintiff.
Shri.Alok Mishra advocate for the Defendant No.2.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asst.Judge
CR no. : 32
Dated :6th April,2017
ORDER
1. Defendant No.2 taken out this motion for condonation of delay of
3540 days in setting aside exparte order and for condonation of delay
in filing written statement.
2. Writ of summons was served on defendant No.2 bank in the
month of February 2008, thereafter, matter was listed on 28/02/2008.
Suit transferred to this court on 01/10/2012, thereafter, matter was
listed on 31/10/2012 and then got adjourned on 04/03/2013. Since
2008 bank has undergone the renovation multiple times, various
officers, law officers of the bank got transferred and retired from the
bank. It appears that notice served on the bank was received by some
officer of the bank, who failed to inform the same to the concerned law
officer or department of the bank. Defendant No.2 is over burdened
with work and due to that probably under the work pressure, the said
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writ of summons skip attention of the bank, therefore, nobody appeared
in the matter on behalf of the bank before the court. Somewhere, in
November 2017 bank received the notice from the court for production
of documents, immediately the defendant No.2 bank appointed its
advocate who filed his vakalatnama on 04/12/2017. Then Defendant
No.2 bank came to know that exparte order has been passed against
the bank on 04/03/2013. Defendant contents that in the interest of
justice defendant be permitted to contest the matter on merit, if
defendant No.2 is allowed for setting aside exparte order and to file
their written statement on record then no harm and injury will be
caused to the plaintiff. Hence, prayed that motion be made absolute.
3. Plaintiff filed the reply. Present motion is filed by one Mr.Kam
Johnson Mango who claims to be the manager of the defendant No.2.
However, there is no authority letter filed on record authorizing him to
file the motion. The writ of summons was served on defendant No.2 ,as
per the affidavit of service dated 20/02/2008 but defendant No.2 failed
to appear before the court, hence, suit proceeded exparte in the year
2008. The order dated 04/03/2013 is passed only for administrative
purpose so as to unable to give further directions to the plaintiff for
filing evidence. The contents in the motion are specifically denied by
the plaintiff. The motion is not maintainable and deserves to be
dismissed with costs. Present motion is only an attempt to delay the
proceeding and same cannot be allowed, hence, motion be dismissed
with costs.
4. Learned advocate Shri.Alok Mishra has placed reliance on :
Zolba Vs. Keshao and Ors 2008(2) UC 771.
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5. Rule 1 of Order 8 is circumscribed by the words “shall not be later
than 90 days” but the consequences flowing from non extension of time
are not specifically provided, though they may be read in by necessary
implication. Merely because a provision of law is couched in a negative
language implying mandatory character, the same is not without
exception. While interpreting the provision court has to consider entire
context in which the provision came to be enacted hold the same to be
directory though worded in the negative form.
6. Learned advocate Smt.P.M.Bhansali has placed reliance on:
Subramaniam & Another vs. K.Veerakumar decided on 29/04/2014.
7. It has been observed that where there has been no gross
negligence or deliberate inaction of lack of bonafides, a broad or liberal
view should be taken, so as to advance substantial justice instead of
terminating the proceeding on technical ground of limitation, unless
the explanation furnished for delay is wholly unacceptable or if no
explanation whatsoever is offered or the delay is in ordinate . Court has
to see as to whether the parties were grossly negligent or deliberately
inactive or their plea lack bonafide.
8. Learned advocate for the plaintiff also placed reliance on the
order in notice of motion No.1345/2014 dated 27/02/2018 of Hon’ble
justice G.S.Patel with respect to the cost imposing for each day’s delay.
But the said order is set aside by Hon’ble Division Bench by order dated
07/03/2018. Cost was imposed as plaintiff was asked for the
adjournment. It has been observed by the Hon’ble Division Bench the
discretion of the court for imposing cost should not be restricted to the
taxable cost of the day, but it might reasonably compensate for the
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expenses incurred by reason of adjournment and it further observed
that cost are awarded not as a punishment to the defeated party nor as
a bonus to the party which receives them but as a recompense to the
successful party in order to indemnify him, though not completely, for
legal expenses to which he has been subjected in prosecuting his suit or
his defence.
9. In fact, defendant No.2 after writ of summons not appeared
before the court, therefore, the roznama ought to have been 'suit
proceeded exparte' and not 'no w/s.'. But as in the roznama 'no w/s.'
hearing has been mentioned, hence, defendant no.2 has made the
prayer in the motion for setting aside exparte as well as no w/s.order.
10. As per the roznama dated 15/09/2008 suit proceeded
undefended against defendant No.1 and 2. Matter transferred to this
court on 01/10/2012. It appears from the roznama, plaintiff again
served the writ of summons on the defendant by RPAD. But inspite of
service defendant No.2 again failed to appear,hence suit proceeded
exparte against the defendant No.2 as matter was posted for exparte
evidence, plaintiff has filed affidavit of evidence of Shri.Anilkumar
Agrawal on 06/12/2013. It also appears from the record that
documents are marked exhibit numbers on the basis of PW.1 Agrawal
on 23/02/2016 and matter adjourned for cross examination by
defendant No.1 remains present before the court in person. As such,
matter is pending before this court since 23/02/2016 for cross
examination by defendant.
11. The suit is for recovery of Rs.90,99,510/ with interest against the
defendant. The contention of the plaintiff is that role placed by the
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defendant No.2 bank to perprited the money and allowed the person
who was not authorized to sign the cheques. Considering the nature of
the suit and for substantial justice, I am of the view that if the exparte
order dated 04/03/2013 is set aside by imposing cost of Rs.7000/ be
paid to the plaintiff, then that will be justifiable, hence, proceed to pass
following order.
ORDER
1. Notice of Motion No.289/2018 is made absolute in terms of
prayer clause (a) to (d) by imposing cost of Rs. 7,000/ be paid to
the plaintiff on or before next date.
2. After compliance written statement of the defendant be taken on
record.
3. Plaintiff is allowed to file additional evidence if any.
Dated :06/04/2018 (Pushpa N. Rao)
Ad hoc Asst. Judge
Bombay City Civil Court
Greater Mumbai
Dictation direct typed on computer on : 06/04/2018
Signed by HHJ on : 06/04/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/04/2018 at ( 12.10 P.M.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of JUDGMENT/ORDER 06/04/2018
JUDGMENT/ORDER signed by P.O.on 06/04/2018
JUDGMENT/ ORDER uploaded on 09/04/2018
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