Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.545 of 2019
CNR: MHCC01-001419-2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.545 OF 2019
IN
S.C. SUIT NO.2106 OF 2014
1 Rajesh Premji Shah & Ors. .. Plaintiffs
V/s.
1. Kishore Keshavlal Mehta & Ors. .. Defendants
Appearances :-
Adv. U.L. Shah for plaintiffs.
Adv. Khushali Samani for defendant Nos.1 and 2.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 3rd March, 2021.
ORDER
1 This Notice of Motion is moved by the defendant Nos.1
and 2 with the prayer to condone the delay of 1360 days in filing
written statement and written statement of defendant Nos.1 and 2
be taken on record.
2 Learned Adv. Khushali Samani for defendant Nos.1 and
2 argued that defendant Nos.1 and 2 received the writ of summons
in the month of November 2014. In fact, the defendant Nos.1 and
2 are the owners of the flat and they availed loan from the
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defendant No.3/Bank and requested him for loan of
Rs.55,00,000/- so that defendant Nos.1 and 2 start paying loan of
defendant No.3 in instalment. Thereafter, there was
correspondence of latter in the year 2011 and plaintiff agreed to
advance loan as requested. Thereafter, in fact, plaintiffs advanced
loan of Rs.27,50,000/- only. Thereafter, plaintiffs prepared
fabricated document as unregistered agreement for sale between
defendant Nos.1 and 2 with the plaintiffs. Thereafter, settlement
talk was going on between the parties. Since January 2014,
defendant No.1 is suffering from financial losses and under
hypertension. Defendant No.2 was suffering from Metabolic
Syndrome. Therefore, there were failures on their part to file
written statement. She submitted that in the interest of justice,
defendant Nos.1 and 2 be permitted to file their written statement
and contest the matter.
3 On the contrary, learned Adv. U.L. Shah for the
plaintiffs opposed the Notice of Motion. He argued that there is no
single medical certificate annexed with the Notice of Motion to
support medical ground of the defendant Nos.1 and 2. Defendant
Nos.1 and 2 are the husband and wife. One of them can easily
engage advocate and contest the matter in time. He further
argued that as per prayer in the Notice of Motion only prayer is for
condonation of delay of 1360 days in filing written statement and
to take the written statement on record. This Court already passed
order on 19/01/2015 to proceed the suit ex-parte against the
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defendant Nos.1 and 2. However, in the present Notice of Motion,
there is no prayer for setting aside ex-parte order and this Court
cannot go beyond the prayer of the parties. On this point, he
placed his reliance on the judgment delivered by our Hon’ble High
Court in the matter of John Vergese V/s. Gracy Vergese reported in
2006(5) Bom.C.R.190. He requested to dismiss the Notice of
Motion.
4 After hearing both the sides, I go through record.
Notice of Motion is supported with the affidavit. In affidavit itself,
defendant No.1 mentioned that writ of summons is served with the
defendants in the month of November 2014. There is no single
medical certificate annexed with the Notice of Motion to support
the medical ground of the defendants. Only vague pleading is
there that defendant No.1 is suffering from losses and under
hypertension. Further, hypertension cannot be considered as
sufficient ground to condone the delay of more than three years.
Present Notice of Motion is moved on 10/10/2018 almost after
three years of the proceeding the suit ex-parte. It appears lack of
bonafide on the part of the defendant Nos.1 and 2 to file written
statement within time. In the present matter, I noticed lack of
diligence on the part of the defendant Nos.1 and 2, therefore, in
my opinion, no such permission can be granted.
5 Further, as argued by the learned advocate for the
plaintiffs and guidelines given in the matter of John Vergese
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(supra), in the absence of prayer of the defendants for setting
aside ex-parte order, this court cannot presume presence of such
prayer in the Notice of Motion and permit the defendants to file
written statement. Hence, considering the facts and circumstances
of the case, I pass following order.
ORDER
1 Notice of Motion No.545 of 2019 is hereby dismissed,
however, no order as to cost.
2 Notice of Motion is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 03/03/2021. Greater Bombay.
Dictated on :03/03/2021.
Transcribed on :04/03/2021.
Signed on :04/03/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 05/03/2021.
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
03/03/2021.
Judgment/Order signed by P.O. on 04/03/2021.
Judgment/Order uploaded on 05/03/2021.
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