Final Order 1

Order Details: Chamber summons
Pdf Text: Order on CS No.310/19 in Suit No.988290
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 310 OF 2019
IN
SUMMARY SUIT NO.9882 OF 1990
(CNR NO. MHCC010015772019)
M/s. Wandrekar Enterprises ….Plaintiffs
Versus
Dayavasta & Company ….Defendants
Appearance:
Shri. Mihir Govilkar, Advocate for plaintiffs.
Shri. Jagdish Hegde, Advocate for defendants.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 13/03/2019
ORAL ORDER
1) The Chamber Summons is filed by the defendant
seeking following reliefs:
“a) that this Hon'ble Court may be pleased to
extend and/or grant further time to comply with
the order dated 10/7/2018 passed by this Hon'ble
Court in Notice of Motion No.1494/2016 in this
suit;
b) that this Hon'ble Court may be pleased to reduce
the quantum of amount of cost levied by this
Hon'ble Court vide order dated 10/7./2018.”
2) The Chamber Summons is supported by affidavit of
Ramniklal Patel who on oath stated that the defendant filed Notice
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of Motion No.1494/16 and 2/4/16 to set aside order dated
30/09/13 and 16/01/16 to proceed with the suit without written
statement and Exparte against the defendants. The written
arguments were filed on 08/01/18 as the parties were directed to
file respective written arguments. Thereafter, matter was on
18/01/18 and 13/02/18 and it was adjourned from time to time.
On 19/04/18 the suit was adjourned for order to 13/06/18. On
07/06/18 the suit wrongly appeared on board and adjourned to
13/06/18. On 13/06/18 the suit was fixed for fresh arguments on
14/06/18 and thereafter on 10/07/18. On 10/07/18 the order
was passed and Notice of Motion was allowed with cost. The
advocate for defendant did not argue the Notice of Motion afresh.
3) He further stated that advocate for defendant
appeared on 22/01/19. After arguments he came to know that
Notice of Motion is disposed of on 10/07/18. The defendant and
their advocate were bonafide belief that Notice of Motion is kept
for afresh arguments as there was change of Presiding Officer of
the court. The non compliance of order dated 10/07/18 is
unintentional. There is no negligence on the part of defendant.
The defendants have their business since last more than 13 years
and have no earnings. Therefore, to reduce the amount of Rs.
25,000/. Hence, prayed to allow the Chamber Summons.
4) The plaintiff filed reply by way of affidavit of Smt.
Beena Bhandekar and has denied allegations made in the Chamber
Summons in toto. The plaintiff stated that the Chamber Summons
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is not maintainable. It is barred by limitation. The defendant is
habitual to prolong the proceeding by using different tactics and
giving false reasons. Though the defendant was aware of the
proceeding, he failed to remain present and now challenged the
order passed by the court.
5) The suit is more than 30 years old. The plaintiff is still
suffering financial loss due to action of defendant. The Summary
suit was filed in the year 1990. The suit proceeded without written
statement. The plaintiff filed the evidence affidavit on 15/11/14.
In the year 2016 the defendant filed Notice of Motion to set aside
the order on 30/09/13 and 16/01/16. On 28/11/16 the Notice of
Motion No.1494/16 was dismissed for default. The order of
dismissal for default was set aside on 16/03/17. Thereafter, the
defendant was directed to proceed with the matter as
expeditiously as possible. The advocate for defendant failed to
proceed with the Notice of Motion No.1494/16 i.e. either failing to
remain present, not coming on time or he kept asking for
adjournments. The written arguments were filed on 18/01/18 and
the matter was adjourned on 13/02/18.
6) The plaintiff further stated that the advocate for
defendant remained absent. Therefore, on 14/06/18 the suit was
adjourned to 10/07/18 for afresh arguments. On 10/07/18
advocate for plaintiff argued the Notice of Motion No.1494/16.
The advocate for defendant was again absent. The Notice of
Motion is allowed on certain conditions. On 06/08/18 the
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advocate for plaintiff filed pursis for posting suit for judgment on
the ground that defendant not complied the order dated
10/07/18. The court was vacant on 06/09/18, 09/10/18 and
17/11/18. On 22/01/19 and 28/01/19 the advocate for plaintiff
was out of station. Therefore, was not able to appear in the court.
No sufficient cause has been shown by the defendant to explain
the delay. Hence, prayed to reject the Chamber Summons.
7) Heard Advocate Shri. Hegde for plaintiff and Shri.
Govilkar for defendant. Perused contents of Chamber Summons
and reply. The defendant has filed the rejoinder reply. I have also
gone through the contents of rejoinder reply.
8) The suit is filed by the plaintiff on 30/06/90 for
recovery of Rs.10,60,000/. Summons for Judgment bearing
No.176/91 was filed. The unconditional leave was granted to
defendant on 20/04/92. The suit are transferred to this court from
Hon'ble High Court in the year 2012 as peculiar jurisdiction of the
court is increased.
9) The roznama dated 30/09/13 shows that Summons
for Judgment order was passed on 20/04/92 and unconditional
leave was granted with the direction to file written statement
within 8 weeks. But, no written statement of defendant appears on
record. Hence, suit to proceed without written statement.
10) Thereafter, on 20/02/16 the defendant appeared for
first time and filed an application at Exh.11 for adjournment. The
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adjournment was granted. The roznama dated 28/11/16 shows
that defendant failed to tender the original Notice of Motion in the
court though the same draft Notice of Motion was submitted on
02/04/16. Since the same is not tendered on record and no steps
are taken to proceed with the same. The same is disposed of
accordingly.
11) The advocate for defendant appeared at 5.15 p.m. on
that day and filed an application to restore the Notice of Motion
alongwith the original Notice of Motion No.1484/16. Exh.13 was
allowed on 16/03/17 and the order of dismissal Notice of Motion
was set aside. It was also directed to the defendant that he should
proceed expeditiously with the matter hereinafter.
12) Thereafter, 0n 07/08/17 the roznama shows that
plaintiff was present. The specific roznama was written that none
for defendant which is not proper to dismiss the Notice of Motion
No.1494/16. In the interest of justice matter is adjourned on
02/04/17 for dismissal of Notice of Motion. On 04/09/17 later on
advocate Shri. Hegde for defendant present. On 18/09/17 also
later on advocate Shri. Hegde for defendant present. On 19/10/17
advocate for defendant and plaintiff were present. The matter was
adjourned for Notice of Motion hearing on 10/11/17 and on
18/01/18 Advocate Shri. Shirke for defendant requested for date.
Parties were directed to file written arguments. On 18/01/18 both
the parties filed written statements to the Notice of Motion.
13) The defendant was absent on 07/04/18, 19/04/18.
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On 07/06/18 the roznama shows that it was wrongly on board.
Therefore, it was adjourned to 13/06/18. On 13/06/18 the Notice
of Motion was fixed for a fresh argument. On 14/06/18 advocate
for plaintiff was present. The defendant and advocate was absent.
Therefore, it was adjourned on 10/07/18 for fresh argument. On
10/07/18 advocate for plaintiff was present. Advocate for
defendants was absent and the order was passed on Notice of
Motion. The order dated 13/09/18 and 16/01/16 were set aside
and defendant was given opportunity to file written statement on
cost of Rs.25,000/ to be paid to the plaintiff within 3 weeks from
the date of the order.
14) On 06/08/18 the plaintiff filed pursis stating that the
defendant did not complied order dated 10/07/18. Thereafter, the
court was vacant on 22/01/18. Both the parties were absent. None
of the representative were present and the suit was adjourned on
21/08/18 for the argument. On 21/08/18 later on advocate Shri.
Hegde for defendant present and on the next date i.e. 06/02/19
the Chamber Summons is filed by precipe.
15) The above events of the roznama shows that
defendants did not remain present to proceed with the Notice of
Motion. The sufficient opportunity was given to the defendant and
the defendant is well aware that suit is pending since 1990 are to
be decided expeditiously. The defendant was granted
unconditional leave to defend by order dated 20/07/92 in
Summons for Judgment No.176/91 with direction to file written
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statement within 8 weeks.
16) The defendant should have file the written statement
at least in the first week of June 1992.He waited till 2016 and
came to the court by filing Notice of Motion No.1404/16 to set
aside the order of without written statement i.e. after 24 years.
Even though then also an opportunity was gien to the defendant in
Notice of Motion No.1494/16. The order dated 30/09/13 and
16/01/16 to proceed without written statement was set aside on
cost of Rs.25,000/ to be paid to the plaintiff within 3 weeks from
the date of the order dated 10/07/08.
17) The said order is now challenged by the defendant by
filing this Chamber Summons on 06/02/19. The delay to file the
Chamber Summons is that there was posting on wrong dates by
advocate for defendant in his diary. The extract of the diary is filed
alongwith the rejoinder affidavit of Shri. R. Patel. The original
diary is not placed on record. It is xerox copy of the extract
without the affidavit of concerned advocate or his junior who
noted the dates in the diary. Therefore, the said xerox copy of the
noting in the diary cannot be the cause of non appearance of the
defendant.
18) The roznama clearly shows that it is not the case that
Notice of Motion was immediately decided after the presiding
officer changed. The opportunity was given to the defendant to
appear before the court. The extract of the roznama and the dates
alongwith the case history is available on the website of District
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court. However, now the defendant is coming with submission that
he was not aware of the dates of the court as there was wrong
noting in the diary.
19) The defendant was well aware of the pendency of the
suit and the fact that it is more than 30 years old. He was also
aware through his advocate that the direction was given to the
defendant to expeditiously proceed with the suit has not complied
by the defendant. Now also the defendant is trying to prolong the
suit only on the ground that the order be set aside and the Notice
of Motion bearing No.1494/16 which is allowed by the court the
time be extended to comply and reduce the cost. Written
arguments is considered by my Predecessor while allowing Notice
of Motion.
20) These facts on record shows that the defendant
cannot seek the liberty to remain absent for a long period and then
again appeared in court and seek the relief of reducing quantum of
amount of cost. The written statement should have been filed by
the defendant in the first week of June 1992 itself. It is taking
almost more than 26 years for the defendant even after the order
dated 10/07/18 to file the written statement in the court.
Therefore, the relief sought in the Chamber Summons for
reduction of cost cannot be allowed.
21) The defendant is seeking time to comply the order
dated 10/07/18. Considering the amount of recovery which is
around Rs. 10 Lac, a last opportunity can be granted to the
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defendant to pay the cost of Rs.25,000/ with condition. Hence,
pass following order :
ORDER
1. The defendant to comply order dated 10/07/18
in Notice of Motion No.1494/16 to pay cost of
Rs.25,000/ to the plaintiff on or before
18/03/2019 and file written statement on the
same date after paying the cost failing which the
final arguments of the plaintiff will be heard and
the suit will be decided.
2. The Chamber Summons is disposed of
accordingly.
(S.S. Nagur)
Date : 13/03/2019 Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 13/03/2019
Transcribed on : 18/03/2019
Signed on : 18/03/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
19/03/2019 & 10.46 a.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 13/03/2019
Order
Judgment/Order signed by the P.O. on : 18/03/2019
Judgment/Order uploaded on : 19/03/2019
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