Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1104 OF 2019
IN
S.C. SUIT NO. 7632 OF 1985
(HIGH COURT SUIT NO.894 OF 1985)
Kinetic Engineering Ltd. ] ...Plaintiff
Versus
Central Bank of India & Ors. ] ...Defendants.
Appearances :
Mr. Vakil, Ld. Adv. for plaintiff.
Mr. J.K. Jadhav, Ld. Adv. for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 2nd January, 2020
ORAL ORDER
1. Defendant No.1 filed this Notice of Motion for framing
additional issues.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and affidavit in reply of plaintiff. Heard both sides.
3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
MHCC01-002856-2019
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Sr. No. POINTS FINDINGS
1. Whether additional issues can be
framed?
In the affirmative.
2. What Order ? Notice of motion is
partly allowed.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the defendant No.1 that, suit is
filed for recovery of a sum of Rs.49,15,950/ (Rs. Forty Nine Lakh
Fifteen Thousand Nine Hundred Fifty only) as alleged in the plaint.
Defendant No.1 has been joined to the suit in the capacity of co
acceptor of the bills of exchange in question. Plaintiff came with the
case that defendant No.3 endorsed in favour of negotiated and
delivered to the plaintiff at Bombay a Bill of Exchange drawn by
defendant No.3, accepted by defendant No.2 and Coaccepted by
defendant No.1 Bank.
5. It was brought to the notice of the then presiding Officer of
the Court on behalf of defendant No.3 that the defendant No.3 is
proprietary concern of Shri Karimbil Kunhambu. The said Karimbil
Kunhambu is died. Then Presiding of this Court had directed to the
plaintiff to bring on record the authorized proper person to represent
defendant No.3. As per Order dated 12.1.2017 the plaintiff failed to
take effective steps, therefore, the suit is dismissed in default against the
defendant No.3 as per Order dated 31st January, 2017. The cause of
action alleged in the plaint is against defendant Nos.1 and 2 through
defendant No.3. Due to dismissal of the suit in default against
defendant No.3 two additional issues are required to be framed:
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“(1) Whether on abatement of Suit against
alleged Principal Debtor M/s. Karimbil
Industries, Defendant No.1 the present suit is
maintainable.
(2) Whether the cause of action survives against
Defendant No.1 and if it is not, whether suit is
required to be dismissed as against Defendant
No.1.”
6. In brief, it is contention of the plaintiff that plaintiff denied
all the adverse contentions raised in the Notice of Motion. The Notice
of Motion is liable to be dismissed. The suit is not abated against the
defendant No.3. The suit is dismissed against defendant No.3 in default
as per order dated 31.01.2017. There is no question to frame additional
issues. There is no averments in the written statement of defendant
No.1 in respect of the proposed two issues mentioned in the Notice of
Motion.
7. Defendant No.1 independent of the bill of exchange has
also signed documents and accepted its liability to make payment of
monies as claimed in the plaint. Therefore, there is no question to
frame the additional issues.
8. Perused Roznama dated 12.1.2017. It is as under:
“Advocate Jaiswal for plaintiff present. Advocate
Mrs. Jadhav for defendant No.1 present. Advocate
Mrs. Bhargavan for defendant No.3 present.
Today while hearing connected Su.No.7632/85 it
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is observed by this Court that the defendant No.3
is the industries and defendant No.3 is not sued in
personal capacity. One Mr. Karimbil was reported
to be dead in this matter by the advocate for
defendant No.3. As the plaintiff has not
challenged the authenticity of the death certificate
this Court. Hence on relying such statements and
as authenticity of the death certificate not
challenge this Court passed an order on 25/02/15
and thereby abated the suit against defendant
No.3.
However today this Court found that the
defendant No.3 is not the person and hence after
the death of Mr.Mr. Karimbil Kunhambu. Cannot
be abated due to death of Mr. Karimbil Kunhambu
thus the order of abatement of suit against
defendant No.3 passed on 25/02/15 is liable to be
called back with further directions to the plaintiff
by passing order below Ex.1 as below.
ORDER
1. The plaintiff to bring on record the authorized
proper person to represent defendant No.3 after
the death of mr. Karimbil Kunhambu within 15
days.
2. Suit is more than 20 years and is already
expedited.
3. If plaintiff failed to take the appropriate steps to
bring on record the authorized person to represent
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defendant No.3, suit against defendant No.3 will
be dismissed in default for want of prosecution.
Adjd. for compliance on 23/01/17.”
9. Perused Roznama dated 31/01/2017. It is
as under:
“Adv. Kinjal Shah for plaintiff present.
Adv. Jadhav for defendant no.1 present. Adv.
Divya Prasad for deft. no.3 present.
Plaintiff failed to take effective steps against
deft.no.3 after the death of Mr. Karimbi
Kunhambu.
Suit against defendant no.3 is dismissed in
default.
Adjd. for evidence PH on 20/02/17.”
10. It appears that initially the suit was filed before the Hon'ble
High Court, thereafter, the suit is transferred to this Court. The Hon'ble
High Court pleased to frame 24 issues on 19.7.2006. The Hon'ble High
Court is also pleased to frame 10 additional issues on 18.6.2007.
11. Perused Order 14 Rule 5 of Civil Procedure Code. As per
the said provision the Court may at any time before passing a decree
amend the issues or frame additional issues on such terms as it thinks
fit, and all such amendments or additional issues as may be necessary
for determining the matters in controversy between the parties shall be
so made or framed.
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12. Admittedly the suit against the defendant No.3 is dismissed
in default as per Order dated 31.01.2017.
13. Both the parties have filed joint draft of additional issues
vide Exh.28 on 20.12.2019 and requested to frame additional issue as
“Whether on account of dismissal of the suit for
default against defendant No.3, the suit against
defendant No.1 is maintainable?”.
14. Therefore, in the facts and circumstances, I am of the
considered view that one additional issue can be framed, Whether the
suit against the defendant No.1 is maintainable after dismissal of the
suit in default against the defendant No.3 as per Order dated
31.1.2017? Hence I record my findings to point No.1 in the affirmative
and point No.2 Notice of Motion is partly allowed as per final order:
ORDER
Notice of Motion No. 1104 of 2019 is Partly allowed as under:
One additional issue be framed. “Whether the suit against defendant
no.1 is maintainable after dismissal of the suit in default against
defendant no.3 ?”.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 02/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 02/01/2020.
Transcribed on : 03/01/2020.
Signed on : 04/01/2020.
( 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”
06.01.2020 at 3.39 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 02.01.2020
Judgment/order signed by P.O. on 04.01.2020
Judgment/order uploaded on 06.01.2020
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