Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.502 of 2018
IN
NOTICE OF MOTION NO.2527 OF 2016
IN
COUNTER CLAI NO.6 OF 2017
IN
SUIT NO.7976 OF 2002
M/s. K.G. Denim Ltd., Company ...Plaintiff in
Counter Claim
V/s.
Shri Sudesh Prabhakar Shinde ...Defendant
in Counter Claim
Appearances:
Ld.Adv.Mr.Bobade and Adv.Mr.Bharat Punekar for plaintiff in counter
claim.
Ld.Adv. K.P. Dubey for defendant in counter claim
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 23rd July,2018
ORDER
By way of this notice of motion defendant prayed for setting aside
order dt.04.05.2017 conditionally passed in Notice of motion No.2527
of 2016 and grant of time to comply the same and permit them to file
their written statement on record to the counter claim.
2. In supporting of affidavit of one Sudhesh Shinde submitted that,
defendant/original plaintiff has filed this Suit No.7976 of 2002 against
plaintiff in the counter claim for recovery of outstanding amount
payable to original plaintiff. Plaintiff in the counter claim also filed
MHCC01-001982-2018
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counter claim in the year 2003, which is registered only on 31.01.2017.
After making grievances against defendant that defendant has not filed
written statement. Plaintiff had not registered the counter claim,
therefore, defendant had taken out Notice of motion NO.2527 of 2016
for taking written statement on record of this defendant, which was
conditionally allowed by this court. Wherein delay of 10 years and 37
days in filing written statement is is condone subject payment of costs
of Rs.5,000/ to the original defendant within two weeks and
thereafter, written statement of original plaintiff was taken on record in
Counter Claim No.06 of 2007. Plaintiff submitted that, as per noting in
the roznama dt.07.04.2017 they have paid costs of Rs.5,000/, but
thereafter, Junior Advocate who has handling the matter during the
said period missed the date and due to which the written statement to
the counter claim remains to be presented on record. Therefore, he
prayed that, there is no intentional delay on the part of this plaintiff to
comply the order in the counter claim to file their reply. Therefore,
they prayed that, their reply be taken on record. If they have not
permitted to file their reply to the counter claim, they will suffer grave
loss and prejudice. Therefore, they prayed that, notice of motion be
made absolute in terms of prayer clause.
3. After service of the notice of motion, plaintiff to the counter
claim i.e defendant in original suit, have filed their reply and submitted
that reasons mentioned is not proper. Original plaintiff has filed
counter claim for recovery of Rs.99,293/ from original defendant and
original defendant have also filed counterclaim before Hon.High Court
for recovery of Rs.11,93,624/ from original plaintiff which was
tendered before the Hon.High Court. Defendant to counter claim
intentionally delaying the matter by mentioning frivolous ground and
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NM 502/2018 .. 3 .. Counter Claim NO.6/2017
avoiding proceeding of the suit. Therefore, no such leniency can be
granted and noncompliance of the order must be considered in the
light of the facts debarring them to file written reply to the counter
claim and prayed that, notice of motion be rejected with heavy costs.
4. Heard learned Advocates for both the sides. Perused the
submissions and record.
5. The order of this Court passed in Notice of Motion No.2527 of
2016 has been specifically mentioned that delay of 10 years and 37
days is condoned fin filing written statement to set aside 'no reply'
order of dt.14.03.2016 subject to costs of Rs.5,000/ was to be payable
by original plaintiff to the counter claimant within two weeks and
thereafter, reply will be taken on record. However, on perusal of the
record, the costs of Rs.5,000/ was not paid to original defendant as
per noting in the roznama, and therefore, written statement of plaintiff
is not filed on record. Therefore, order of Notice of Motion No.2527 of
2016 remains to be complied with.
6. The reason mentioned is just and proper, as per submission it is
fault on the part of learned counsel i.e junior Advocate , who has not
taken dates properly as mentioned by original plaintiff in para No.4 in
their supporting affidavit. Therefore, mistake or fault on the part of
learned counsel cannot be cause of sufferance to the parties as per
settled principle of justice. Therefore, in the interest of justice if
original plaintiff i.e defendant to counterclaim is permitted to place
their reply to the counterclaim, it will subserve the ends of justice. It
will not cause prejudice to counter claimant.
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7. Therefore, to decide the matter on merits the precondition of
compliance of the order passed by this Court in Notice of Motion
No.2527 of 2016 dt.31.01.2017 to pay costs of Rs.5,000/ within two
weeks by original plaintiff can be allowed them to file their reply to the
counterclaim. Nonco mpliance will forfeit their rights forever to file the
written statement to the counter claim. With these observations I pass
the following order :
O R D E R
1. Notice of Motion No.502 of 2018 is made absolute.
2. Original plaintiff/defendant to counterclaim is
permitted to file their reply to the Counter Claim
No.6 of 2017 on compliance of the order passed by
this Court on 31.01.2017 in Notice of Motion
No.2527 of 2016 by setting aside order dt.04.05.2017
subject to payment of costs of Rs.5,000/ paid to
plaintiff in counterclaim within two weeks from the
date of this order.
3. Noncompliance within time will forfeit the right of
defendant in counterclaim to file reply/written
statement forever.
4. No order to costs of this notice of motion.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.:23/07/2018 City Civil Court, Gr. Mumbai
Dictated on : 23.07.2018
Transcribed on : 25.07.2018
Signed on :
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.07.18 at 2.02 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 23.07.18
Judgment/order signed by P.O. on 25.07.18
Judgment/order uploaded on 25.07.18
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