Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.866 OF 2019
IN
SUIT NO.3620 OF 2011
(HIGH COURT SUIT NO.1141 OF 2011)
M/s. Lorven International Pvt. Ltd. ] … Plaintiff
V/s.
The Chief Engineer (Building Works) ]
Mahanagar Telephone Nigam Ltd. ] ... Defendant
Appearances :
Ms. Jayashree Pille Ld. Adv. for plaintiff.
Ms. Gupte, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 16th December, 2019
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for restoration
of suit which is dismissed for default on 20.10.2018 and also for
condonation of delay in filing Notice of Motion.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, affidavit in reply of defendant.
MHCC01-002296-2019
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3. Heard plaintiff's Advocate. Advocate for defendant absent.
Hence arguments of defendant is closed as per Order dated 28.11.2019
passed on this Notice of Motion.
4. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing this Notice of
Motion to restore the suit can be
condoned?
In the affirmative.
2. Whether suit can be restored by setting
aside the order of dismissal of suit
dated 20.10.2018 ?
In the affirmative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the plaintiff that initially the suit
was filed before the Hon'ble Bombay High Court, claiming reliefs for
payment of Rs.33,50,055.70 as mentioned in the plaint alongwith
further interest at the rate of 18% p.a. from the date of filing of the suit
till payment.
6. Defendant appeared and filed written statement. The
matter was transferred from Hon'ble Bombay High Court to this Court.
Plaintiff through advocate attended Court for seven years, even after
transferring the suit to this Court, till or about April, 2018. After
transferring the matter to this Court issues are framed on 21.6.2018.
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The Clerk of plaintiff's Advocate Mr. Vishal Patne left the service in the
month of June, 2018, therefore through oversight status of the suit was
not updated in the dairy of the Advocate.
7. It is further contention of the plaintiff that plaintiff's
Advocate and the family of the plaintiff's Advocate had gone to Varanasi
and Gaya in the month of September, 2018 in connection with first year
religious ceremony of death of plaintiff's Advocate's mother. Therefore,
inadvertently none remained present before the Court. The plaintiff in
the first week of December, 2018 checked up with the lawyer office
regarding this suit, it was realized to plaintiff and advocate of plaintiff
that suit is dismissed in default for want of prosecution on 20.10.2018
on the ground that none had appeared on behalf of the plaintiff. There
was no willful or deliberate default on the part of Advocate of plaintiff.
Therefore, necessary orders be passed under Order 9, Rule 4 of the
Code of Civil Procedure, set aside the order of dismissal of the suit and
the suit be restored.
8. Defendant filed reply. In brief, it is contention of the
defendant that all the adverse contentions leveled by the plaintiff are
denied. The plaintiff was not vigilant to proceed with the matter. The
suit cannot be restored on sympathetic ground alone unless the delay is
properly, satisfactorily and convincingly explained. There is no
sufficient cause to condone the delay in filing the application for
restoration of the suit and to restore the suit. Hence, Notice of Motion
be dismissed.
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9. Perused Roznama dated 20.10.2018. It is observed therein
that both the parties and their counsel were absent. Issues are framed
on 21.06.2018. Plaintiff has lost interest in the suit. Therefore, the suit
dismissed in default for want of prosecution.
10. Perused record. The plaintiff is Company. Suit is filed in
the year 2011. Issues are framed on 21.6.2018. Suit is dismissed in
default on 20.10.2018, when both the parties were absent.
11. Perused Order 9 Rule 3 of the CPC. As per the said Rule
where neither party appears when the suit is called on for hearing, the
Court may make an order that the suit be dismissed.
12. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
13. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
14. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
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under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
15. According to the plaintiff, Clerk of plaintiff's Advocate left
service in the month of June, 2018 and therefore, status of the suit is
not updated due to oversight. It is one of the contention of the plaintiff
that, in the month of September, 2018 plaintiff's Advocate and family of
the plaintiff's Advocate went to Varanasi and Gaya in connection with
first year religious ceremony of death of plaintiff's Advocate's mother.
This notice of motion is supported by filing affidavit. It is duty of the
plaintiff to update the status of the suit and to keep in touch with the
matter. Considering the nature of the suit and reasons for non
attending the Court, I am of the opinion that there are justifiable
grounds to condone the delay and to restore the suit by imposing some
costs. Hence, I record my findings to point Nos.1 and 2 in the
affirmative and point No.3 the Notice of Motion is allowed as per final
order. Hence following order:
ORDER
Notice of Motion 866 of 2019 is hereby allowed as under:
1. Delay in filing Notice of Motion to set aside the order of dismissal
of suit dated 20.10.2018 in default for want of prosecution is
hereby condoned subject to costs of Rs.1,000/.
2. Time granted till 13.01.2020 to deposit the said costs in the Court
or it be given to the defendant.
3. The order dated 20.10.2018 dismissing the suit in default is
hereby set aside subject to payment of the said costs.
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4. After compliance of the order of the costs, the said suit No.3620
of 2011 (High Court Suit 1141/11) be restored at its original
stage.
5. Both the parties are hereby directed to remain present before this
Court on 27.01.2020 at 11.00 a.m.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 16/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 16/12/2019.
Transcribed on : 20/12/2019.
Signed on : 27/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.01.2020 at 12.36 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 16.12.2019
Judgment/order signed by P.O. on 27.12.2019
Judgment/order uploaded on 01.01.2020
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