Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM NO. 948/2020
MHCC010025762020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 948 OF 2020
IN
S.C. SUIT NO.591 OF 2019
Colaba Land CHS Ltd.
A society registered under the provisions of
Maharashtra Cooperative Societies Act,
Having its registered office at
Sorab Bharucha Road,
Colaba, Mumbai 400 005. ….Applicant.
(Orig. Defendant no.2)
In the matter of :
Mr. Vijayraj Chattier
Age: 57 years, Occ: Business,
Hindu, Indian Inhabitant of Mumbai,
Having his address at Garage No.1,
Ground Floor,
Brady's Flat in Colaba Land CHS Ltd.
Sorab Bharucha Road,
Colaba, Mumbai 400 005. ...Plaintiff.
Versus.
1. Mr. Niyam Bhasin
Hindu, Indian Inhabitant of Mumbai,
Residing at 9/4, Brady's Flat, Colaba,
Mumbai 400 005.
2. Colaba Land CHS Ltd.
A society registered under the
provisions of Maharashtra
Cooperative Societies Act,
Having its registered office at :
-- 1 of 5 --
..2.. NM NO. 948/2020
Sorab Bharucha Road,
Colaba, Mumbai 400 005. ...Defendants.
Advocates
Jayom Shah for the plaintiff.
Pratik Pai for defendant no.2.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 12th February, 2021.
ORAL ORDER
Heard both parties on notice of motion moved on behalf of
defendant no.2 for condonation of 310 days delay in filing written
statement and taking its written statement on the record. Perused the
notice of motion alongwith affidavit and reply of the plaintiff.
2. Contention of advocate for defendant no.2 is that defendant
no.2 appeared on 19.03.2019 in Notice of Motion No.1265/2019 filed
on behalf of the plaintiff. Defendant no.2 filed its reply to notice of
motion on 30.03.2019 and this Court dispense with service of writ of
summons. Notice of motion no.1265/2019 is dismissed on 16.09.2019.
Suit was listed for compliance on part of the plaintiff for service of writ
of summons on defendant no.1.
3. Plaintiff has not produced all relevant
documents/correspondence with regard to suit garage. Hence
defendant no.2 was required to review its 54 years old record and
documents pertaining to Flat no.3 in Block no.1 and the suit garage
which took considerable time. Further virtually all office bearers of
defendant no.2 are professionals who have to attend their daily job
-- 2 of 5 --
..3.. NM NO. 948/2020
alongwith managing affairs of the defendant no.2 Society. Delay in
filing written statement is entirely inadvertent. Hence delay caused in
filing written statement. Delay is not deliberate. Defendant no.2
affirmed its written statement on 24.02.2020. Hence prayed for
allowing notice of motion.
4. Contention of advocate for plaintiff is that notice of motion is
not in accordance with the provisions of section 5 of the Limitation Act
and the Civil Procedure Code. Plaintiff has attached all relevant
documents in notice of motion no.1265/2019. Defendant no.2 filed
same documents in its reply to notice of motion no.1265/2019 and
there is no discovery of new documents. There are no sufficient ground
for condonation of delay in filing written statement. In the light of
principle laid down in Esha Bhattacharjee V/s. Mg. Commit of
Raghunathpur Nafar, notice of motion be dismissed with exemplary
costs.
5. From the perusal of paragraph no.2 and 3 of the plaint, it
appears that suit garage is situated in defendant no.2 society. Hence the
plaintiff joined defendant no.2 as proper and necessary party. No reliefs
are claimed against defendant no.2. However defendant no.2 appeared
through its advocate, filed reply and contested notice of motion
no.1265/2019 filed on behalf of plaintiff. Admittedly defendant no.2 is
a Housing Society. Raghuvansh Bhasin, father of defendant no.1 was
owner of suit garage. He expired on 28.12.2013. He handed over
possession of suit garage to the plaintiff by writing dated 28.05.2013.
According to plaintiff one suit bearing Stamp No.241/2017 was filed
before the Hon'ble High Court.
-- 3 of 5 --
..4.. NM NO. 948/2020
6. Under such facts and circumstances, contention of defendant
no.2 that considerable time was required to go through the documents
of its society cannot be overlooked. Further defendant no.2 being
housing society required to pass resolution for defending the case.
Delay in filing written statement cannot be said to be deliberate as
defendant no.2 already filed its reply to plaintiff's notice of motion
no.1265/2019 which was decided on 16.09.2019. At the most, it can be
said that written statement of defendant no.2 is not filed within time
inadvertently as notice of motion no.1265/2019 was pending.
Defendant filed its written statement alongwith the present notice of
motion.
7. Further according to the plaintiff's own admission in the plaint,
defendant no.2 is joined as proper and necessary party, and no reliefs
are claimed against defendant no.2. It is well settled that no party
should remain unheard. So far as question of delay in filing written
statement of defendant no.1 belatedly is concerned, plaintiff can be
compensated in terms of money. In the result, this Court passes
following order in the interest of justice.
ORDER
1. Notice of motion no.948 of 2020 is allowed and made absolute
subject to cost of Rs.3000/ to be paid by defendant no.2 to the plaintiff
within 15 days from the date of this order.
2. After payment of cost to the plaintiff, written statement of
defendant no.2 be taken on record and mark as exhibit.
3. Notice of motion no.948 of 2020 is disposed of.
(Sunil T. Soor)
Judge
Date : 12.02.2021 Gr. Mumbai.
Typed on : 12.02.2021
HHJ signed on : 12.02.2021
-- 4 of 5 --
..5.. NM NO. 948/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 12.02.2021, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
12.02.2021
JUDGMENT/ORDER signed by P.O.
on
12.02.2021
JUDGMENT/ORDER uploaded on 12.02.2021
-- 5 of 5 --