Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1127/19 (Suit 2064/17)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1127 OF 2019
(CNR No.MHCC01-002923-2019)
IN
S.C. SUIT NO. 2064/2017
Shri Gopi Gangadhar Yeldy ..Plaintiff
V/s.
1. Shri Govardhan Gangadhar Yeldy
2. Smt. Laxmi Gangadhar Yeldy ..Defendants
Appearance:-
Adv. Mr. Muhammed Iftikhar Ali for plaintiff.
Adv. Ms. Shraddha Chaurasiya for defendants.
CORAM : HHJ Shri V.V.Vidwans
C.R.No.03
DATE : 13.2.2020.
ORAL ORDER
1. Perused Notice of Motion supported by an affidavit of
Mr.Govardhan Gangadhar Yeldy (defendant no.1) along with
documents filed on record vide Exh.A. The Motion is opposed by
plaintiff.
2. I have heard Ld. Counsels for both parties on the
Motion.
3. Ld. Counsel for the defendants submitted that, on
13.3.2018 this court was pleased to pass ‘no WS’ order in the suit
and present Motion is taken out for setting aside the no WS order
by condoning the delay of about 329 days in submitting the WS on
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record.
4. Ld. Counsel for the defendant further submitted that,
the delay of 329 days caused in the matter is not deliberate or
intentional but has occurred because of certain reasons, which are
stated in the supporting affidavit. He further submitted that, writ
of summons was served on the defendants in November 2017 and
thereafter, the defendants had provided necessary details and
documents to their lawyer Adv. Ms. Hina Ansari for preparing the
WS. On 20.12.2017, Adv.Ansari appeared in the matter and sought
time for filing her Vakalatnama and WS. The matter was adjourned
to 13.3.2018. Thereafter due to her personal difficulty, Adv. Hina
Ansari went to her native place and could not prepare WS and had
returned the brief to the defendants on 10.3.2018. Copy of letter is
annexed with the Motion vide Exh.A.
5. Thereafter, the defendants had engaged another lawyer
Ms. Deepika Kanade and gave her necessary briefing. Therefater,
Sr. Lawyer was also consulted before drafting the WS. It took some
time. In the meanwhile, due to marriage of Adv. Deepika Kanade,
she had returned the case papers to the defendants on 17.8.2018 as
per letter, copy of which is filed at Exh.A1 on record. Lastly, the
defendants have engaged advocate Mr. Parvinder Singh Sethi, who
appeared before the court on 6.10.2018 and had prayed for grant
of time to file WS but the court had not accepted the same and
passed ‘no WS’ order, and adjourned the matter for exparte
evidence.
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6. Under the above circumstances, Ld. Counsel for the
defendants submitted that, the defendants are not at fault in not
submitting the WS within time, but it is due to various reasons
and circumstances concerning their advocates, who were incharge
of the brief. Hence, it is prayed that, the delay of 329 days is
liable to be condoned, subject to conditions.
7.
Per contra, Ld. Counsel for the plaintiff has strongly
opposed the Motion and relied on the affidavit in reply and also
documents filed on record. He submitted that, the reason of
returning the brief by Adv. Deepika Kanade was not because of her
marriage, but it was because the defendants did not pay
Rs.40,000/- to her as her fees, as mentioned in a letter dated
17.8.2018 (Pg.6) vide Exh.B with affidavit in suppor of N/M.
Marriage of Ms.Deepika Kanade took place on 22.12.2018 after four
months of her letter dated 17.8.2018. It is further submitted on
behalf of the plaintiff that, the financial condition of defendants is
sound to pay fees to the lawyers.
8. Ld. Counsel for the plaintiff further submitted that,
from the date of service of summons there is delay of 455 days
and not 329 days as mentioned by the plaintiff. The delay is
substantial one and has not been properly explained by the
defendants after 30/90 days of service of summons. The plaintiff
has already filed exparte evidence before the court on 24.1.2019
along with original documents and Suit has proceeded without WS
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of the defendants on record. Ld. Counsel for the plaintiff referred
to the list of documents filed on record vide Exh.A, annexed with
the application filed under Order XIII Rule 15 of CPC seeking
directions against defendants to produce documents vide list of
documents given at Exh.A along with affidavit in reply. Ld.
Counsel for the plaintiff submitted that, the documents mentioned
in the list are in possession of the defendants and plaintiff has
given notice to produce original documents before the court u/s.66
of Evidenc Act. Hence, the defendants may be directed to comply
with the said notice and appropriate orders may be passed in the
notice of motion.
9. I have gone through the supporting affidavit filed with
the Motion and considered the documents filed on record. It
appears that, the prayer for condontion of delay in taking out the
Motion by the defendants is supported by affidavit and documents
filed on record, which consist of copies of letters given by the
respective advocates Ms. Hina Ansari and Ms. Deepika Kanade vide
Exhs.A and B respectively. It is also clear that, the defendants are
not responsible for the delay or that they have not been found
negligent in not preparing the WS within time. The delay has
taken place due to reasons which were beyond their control and
therefore, the delay needs to be condoned in the interest of justice.
However, because of the delay in submitting the WS by the
defendants, trial of the case is also bound to be delayed further.
Hence, it will be proper to allow the Motion subject to reasonable
costs. Hence, I proceed to pass following order :-
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ORDER
1. Notice of Motion No.1127/2019 is hereby allowed
subject to defendants paying costs of Rs.2,000/- to
the plaintiff/ depositing in the court within four
weeks from today.
2. If the above directions are complied with by the
defendants within given time, no WS order dated
13.3.2018 shall stands set aside by condoning the
delay and the WS of the defendants shall be taken
on record.
3. In view of above order, the plaintiff is given liberty
to file additional evidence affidavit and the
defendants are directed to comply with the notice
given by the plaintiff for production of the original
documents as per list vide Exh.A filed with the
affidavit in reply.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 13.2.2020 Gr. Bombay (C.R. 03)
Typed on 14.2.2020
Draft given to HHJ on 14.2.2020
Signed by HHJ on : 14.2.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 15.2.2020
TIME: 12.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V.Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 13.2.2020
Judgment/ order signed by P.O on 14.2.2020
Judgment/ order uploaded on 15.2.2020
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