Final Order 1

Order Details: Notice of Motion
Pdf Text: 1/1 NM No.563/20 in SU 689/19
MHCC010014792020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.563 OF 2020
IN
SUIT NO.689 OF 2019
1. Jamsetjee Jejeebhoy & Ors. … Plaintiffs.
V/s.
1. The Faridoon Court Cooperative Housing
Society Ltd. & Ors. …
Defendants.
Appearance :
Adv. Mr. Pervez Rustomkhan for the plaintiff.
None present for defendant No.2.
Adv. Mr.Shobhit Shukla h/f.Adv.Mr.A.R. Pande for defendant
Nos.1 and 3 to 9.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date: 3rd May, 2023
O R D E R
This notice of motion is taken out by the defendant No.2
requesting to set aside order dated 16/01/2020, by which the suit is
proceeded without written statement of this defendant.
2. The notice of motion is opposed by the plaintiffs by
-- 1 of 4 --
1/2 NM No.563/20 in SU 689/19
affidavit in reply (Exh.07).
3. Heard the Ld. Advocate for the plaintiffs. No argument of
defendant No.2.
4. I have gone through the contentions in the affidavit filed in
support of the motion, the contents of affidavit in reply. It is the
contention of the defendant No.2 that there was attempt for settlement
of dispute and therefore, the office bearers of defendant No.2 could not
file the written statement. It is also their contention that on the date
when the order to proceed without written statement was passed, their
advocate was held up before the Hon'ble High Court and therefore, it
resulted into passing of said order. The plaintiffs in the say admits that
there was an attempt for settlement. They also issued letter dated
06/01/2020 as no settlement proposal was received from the defendant
No.2. It is also the contention of the plaintiffs that by letter dated
06/01/2020, defendant No.2 informed their desire of settling the
dispute and filing draft consent terms. However, no progress was
shown. Therefore, it appears that in the year 2020, there was an
attempt for settlement of the dispute. According to the plaintiffs, suit
summons were served upon defendant No.2 on 24/05/2019. The
defendant No.2 was required to file the written statement in June2019.
There was attempt for settlement of the dispute. Since March2020,
there was outbreak of Covid19. The pandemic was continued till Feb
2022. The Hon'ble Supreme Court in Suo Motu Writ Petition
No.3/2020, directed to exclude the period of limitation during
15/03/2020 to 28/02/2022. In present case before me, the limitation
for filing the written statement is already expired before 15/03/2020.
Therefore, there will be no exclusion of limitation. However, facts
remains to be considered that during the pandemic there was process of
-- 2 of 4 --
1/3 NM No.563/20 in SU 689/19
settlement which did not proceed further. There is substance in the
present defendant's contention that as there was an attempt for
settlement of dispute, the written statement was not filed. Ground of
pandemic can also be considered due to which no effective steps were
taken by the defendant No.2. It is the contention of defendant No.2 that
on the schedule date, their advocate was unavailable to attend the
hearing of the case. Now the defendant No.2 wants to defend the suit.
The suit is for declaration of ownership, injunction. Valuable rights of
the plaintiff, defendant No.2 are involved. Therefore, to decide the
dispute finally and conclusively, it is just and necessary to allow the
defendant No.2 to file their written statement. Hence, I pass the
following order :
ORDER
1. Notice of Motion No.563/2020 is allowed subject to
costs of Rs.3,000/ (Rupees Three Thousand Only) to be
paid to the plaintiff on or before next date.
2. The Order dated 16/01/2020 directing the suit to
proceed without written statement of defendant No.2 is
set aside.
3. Notice of Motion No.563/2020 is disposed of
accordingly.
Date : 03/05/2023
(Rajesh A. Sasne)
Judge
City Civil Court,
Mumbai
Dictated on : 03/05/2023.
Directly typed on : 03/05/2023
Signed on :
-- 3 of 4 --
1/4 NM No.563/20 in SU 689/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.05.2023 at 3.55 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 03/05/2023
Order signed by P.O. on 06/05/2023
Order uploaded on 06/05/2023
-- 4 of 4 --