Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1089/19 in Suit No. 9180/92. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1089 OF 2019
(CNR NO. MHCC010028162019)
IN
EXECUTION APPLICATION NO. 104 OF 2018
(CNR NO. MHCC010052802018)
IN
SUIT NO. 9180 OF 1992
(CNR NO. MHCC010003981991)
(HIGH COURT SUIT NO. 40 OF 1992)
Silverwing Roadways (South) ...Plaintiff
Versus
Rakesh Road Carriers and Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 30th JULY, 2019.
Ms. Leena Temkar , Advocate for Plaintiff.
Mr. B.B.Parekh, Advocate for Defendant No.1.
ORAL ORDER
This is a motion taken out by defendant no.1 to set aside
the decree (no evidence by defendant) issued by this Court in view of
the judgment dated 03/05/2016.
2. Applicant / defendant no.1's case is narrated as follows :
According to defendant no.1, he runs a business of
transportation. Defendant no.2 is a truck owner, defendant no.3 is a
truck driver and the goods of defendant no.4 were to be transported
from Mumbai to South Region of India. The defendant no.2 has played
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N/m No. 1089/19 in Suit No. 9180/92. 2 Order.
a mischief. It was an intimation given by the defendant no.1 to the
plaintiff. Thereafter a criminal report was lodged at Bengaluru and
goods were recovered from the defendant no.2 by the police. Upon
increase in the jurisdiction of this Court, the suit came to be transferred
from the Original Side of the Hon'ble High Court to this Court in the
year 2013. However no notice was served to the defendants.
Defendants hold a good case to contest. It is prayed to set aside the
judgment given by this Court on 03/05/2016 and defendants be
allowed to contest the suit.
3. Perused reply filed by plaintiff Roadways Company. It is
strongly resisted to restore the suit. It is added that exparte decree was
given by the Hon'ble High Court on 05/10/1999 which was set aside
upon depositing Rs.1,00,000/ (Rupees One Lakh Only) by order dated
04/11/2003. There are no sufficient grounds mentioned by the
defendant no.1. It is requested to reject the motion.
4. Ld. Advocate B.B.Parekh for defendant no.1 submits that it
was a mischief played by the driver when goods were transported
through defendant no.1. The mischief played by the driver was
intimated by the defendant no.1 to the plaintiff. In said crime lodged at
Bengaluru, defendant no.2 was arrested. After the suit is transferred to
this Court, there is no notice issued to the defendants. Hence it is
claimed to set aside order of this Court dated 03/05/2016.
5. Ld. Advocate Leena Temkar for plaintiff submits that the
amount of Rs.1,00,000/ (Rupees One Lakh Only) deposited by the
defendant was withdrawn by the plaintiff. The notice of withdrawal of
amount was served on defendant no.1. At that time, no objection came
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N/m No. 1089/19 in Suit No. 9180/92. 3 Order.
to be raised by the defendant no.1. However, for the remaining amount
when execution petition came to be filed by plaintiff, defendant no.1
rushed to the Court to set aside aforesaid judgment. It is requested to
reject the motion.
6. On perusal of roznama of this Court from 15/09/2015, it is
crystal clear that no notice after transfer of the suit was issued by this
Court. Accordingly there is no appearance of any defendant before this
Court.
7. On perusal of judgment given by this Court dated
03/05/2016, issues are reproduced in para 4 of the judgment.
Accordingly, it is to note that written statement of defendant was before
the Court at the time of delivery of the judgment.
8. In view of aforesaid rival contentions, following points arise
for determination i.e.
a) Whether defendant no.1 was vigilant since inception in
present suit ?
b) Whether defendant has given sufficient cause to show that
he was prevented from appearance before this Court ?
9. At the outset, it is to note that when the suit was pending
before the Hon'ble High Court, it was decreed exparte on 05/10/1999.
The said order came to be set aside on 04/11/2003 and defendant no.1
was compelled to deposit Rs.1,00,000/ (Rupees One Lakh Only).
Accordingly one chance was given to the defendant no.1 in the year
2003. However the suit was received to this Court by transfer in the
year 2015. It is to note that defendant was allowed to file written
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N/m No. 1089/19 in Suit No. 9180/92. 4 Order.
statement subject to cost of Rs.3,000/ (Rupees Three Thousand Only)
on 14/03/1997. Defendant no.1 was not present before the Court on
05/10/1999. It appear from the proceeding that defendant no.1 was
not vigilant before the Hon'ble High Court nor before this Court.
10. It was the duty of defendant no.1 to keep track of his case
when it was pending before the Hon'ble High Court and upon transfer
to this Court.
11. After pronouncement of judgment of this Court on
03/05/2016, a notice was served on defendant no.1 on 21/07/2017
when plaintiff has filed an application to withdraw the amount. At that
time, no agitation came to be filed by the defendant no.1. Therefore
abovementioned both points are replied in negative.
12. In short, there is no substance in motion. It appear that to
avoid execution of the decree in favour of plaintiff, the motion came to
be filed by the defendant no.1. It is devoid of merit. Hence the order :
ORDER
1. Notice of Motion No. 1089/2019 stands rejected.
2. N/m No. 1089/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 30/07/2019. Mumbai.
1. Dictated on : 30/07/2019.
2. Transcribed on : 02/08/2019.
3. Signed on : 03/08/2019.
4. Delivered to Certified :
Copy Section on
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N/m No. 1089/19 in Suit No. 9180/92. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03/08/2019. 4.34 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 30/07/2019.
Judgment/Order signed by P.O. on 03/08/2019.
Judgment/Order uploaded on 03/08/2019.
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