Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 715/2019 IN SUIT NO.6333/2004 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.715 of 2019
IN
SUIT NO.6333 OF 2004
CNR NO. MHCC010018622019
City & Industrial Development
Corporation of Maharashtra Ltd,
having its Registered office at Nirmal,
2nd floor, Nariman Point, Mumbai. .. .. Plaintiffs
Versus
1) Trymbak N. Dudhate, an adult, having
address at Bridge View CHS Ltd,
N.L.6/2/0.3, Secot2, Nerul, Navi Mumbai.
2) Central Bank of India,
a body corporate, incorporated under the
Banking Companies (Aquisition and
Transfer of Undertakings) Act V of 1970,
having its Central Office at
Chandermukhi, Nariman Point,
Mumbai 400 021 ...Defendants
Adv. Ms.Dharini Jain for Plaintiff.
Adv. Alok Mishra for Defendant no.2
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad Hoc Judge
C.R. No. : 32
Dated :2nd May, 2019.
ORDER
1) Defendant No.2 taken on this motion to recall the order dated
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NM 715/2019 IN SUIT NO.6333/2004 2
23.01.2019 and permitted them to cross examine PW1.
2) Suit transferred to this court from the High Court. Defendant no.
2 taken out the motion no. 289 of 2018 to set aside the exparte order
passed against them that motion was allowed by order dated
04.03.2018 and written statement of the defendant was taken on
record. On 20.12.2018 documents of the plaintiff were exhibited and
matter was adjourned for cross of PW1 on 23.01.2019. But defendant
no. 2 could not attend the matter on that date due to his sudden illness.
Therefore, he could not inform the bank officers to attend the matter.
Hence, 'nocross' order has been passed against the defendant no.2. If
'nocross' order is set aside then no harm will be caused to the plaintiff.
Hence, motion be made absolute in the interest of justice.
3) Plaintiff tendered their reply. No authority letter has been placed
on record authorizing him to filed the present motion. Remaining all
the averments are regarding the motion taken out by defendant no.2.
Plaintiff is seeking recall of the order but as the matter is 10 years old
hence permission can not be granted. Delay is not properly explained,
Hence, motion be dismissed with cost.
4) Heard Ld.Adv. Alok Mishra for Defendant no.2 and Adv.
Ms.Dharini Jain for Plaintiff.
5) I have perused the roznama in the matter. Plaintiff has tendered
the affidavit of evidence of Shri. Anilkumar Agarwal on 06/12/2013.
The documents were exhibited on 23/02/2016 and matter was posted
for cross examination by defendants. It also appears from the record
that defendant no.1 appeared in person but not tendered his written
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NM 715/2019 IN SUIT NO.6333/2004 3
statement nor crossexamine DW1. Defendant no.2 had taken out
Notice of Motion No.289/2018, that motion was allowed and defendant
no.2 was permitted to tender their written statement subject to cost of
Rs.7000/ be paid to be plaintiff by order dated 06/04/2018. Said
order is complied by defendant no.2 and their written statement came
on record 20/04/2018 and issues are framed on 03/11/2018.
6) Plaintiff was allowed to file additional evidence, if any, after
framing of issues but no additional affidavit of evidence filed on record
by the plaintiffs but tendered the pursis (Exh22) that they accepted
they evidence Shri. Anilkumar Agarwal after framing of issues. On
23/01/2019 plaintiff witness Shri.Agarwal was present before the
courgt but defendant no.2 and their advocate were absent till 3.10 p.m
hence 'no crossexamination' order has been passed against defendant
no.2.
7) Considering the nature of the suit and the reason assigned for
recall of order, I am of the view, if the nocross order dated
23/01/2019 is set aside by imposing of the cost of Rs.3,000/ be paid to
PW1 then that will be justifiable. Hence, I pass the following order.
ORDER
1. Notice of Motion No.715/2019 is made absolute in terms of
prayer clause by imposing cost of Rs.3,000/ be paid to PW1 on or
before the next date.
2. Plaintiff is directed to remain PW1 on the next date for the cross
examination by defendant no.2.
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3. Failure on the part of payment of cost to PW1 on or before the
next date the order will automatically stands vacated.
Date : 02.05.2019 (Pushpa N. Rao)
Ad hoc Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer : 02.05.2019
Signed by HHJ on : 02.05.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME : 02.05.2019 at 5.34 P.M.
NAME OF STOP GAP STENOGRAPHER : Mrs. P.S.Mahale
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
02.05.2019
JUDGMENT/ORDER signed by
P.O.on
02.05.2019
JUDGMENT/ ORDER uploaded on 02.05.2019
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