Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION No. 847 OF 2018
IN
SUIT No.8337 OF 1998
Trishi Holdings Pvt. Ltd.. ..Plaintiffs.
Versus.
M/s. K.T. Enterprises & Ors. ..Defendants.
Adv. Devang Shah for Plaintiffs.
Adv. Mandira Manna for Defendant No.5.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 05.04.2018.
ORAL ORDER
Present Notice of Motion is taken out by defendant No.5 – Bank
of India for condonation of delay of approximate 97 days in filing
written statement and to set aside exparty order dated 04.10.2017.
2. It was contended by defendant No.5 that earlier defendant No.5
was represented by advocate before the Hon'ble High Court. That,
when the suit was transferred to this court previous advocate did not
inform them about the development in the suit. That, defendant No.5
came to know about present suit only when they received Chamber
Summons No.1900 of 2017 on 22nd November 2017. Therefore, they
have prayed for the above reliefs.
3. Defendant N.5 placed reliance on the ratio laid down by the
Hon'ble Bombay High Court in following cases.
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1. 2003(3) ALL MR 467
2. AIR 1981SC1400
3. AIR 1984 SC 41
4. Zolba V/s. Kesho & Others. AIR 2008 SC 2009
5. Sambhaji & Others. V/s. Gangabai & Ors.
2009(1) Bom. C.R. 81 (SC)
6. Salem Advocate Bar Association, Tamil Nadu,
V/s. Union of India, AIR 2005, SC 3353
4. Defendant No.4 chooses not to file reply to present Notice of
Motion. Defendant Nos.1 to 3 already proceeded exparty. By way of
reply to present Notice of Motion the plaintiff contended that order
dated 04.10.2017 is rightly passed. That, defendant No.5 was added in
pursuance to the order in Chamber Summons No.221 of 2007. At that
time itself defendant No.5 was served with all relevant documents. That
defendant No.5 was represented through advocate before the Hon'ble
High Court. Even after Chamber Summons No.221 of 2007 was
disposed of by order dated 29th January 2009, the plaintiff submitted
that defendant No.5 was fully aware about present suit but kept quiet
and now cannot say that they relied on their advocate when no affidavit
is filed of any advocate. Contending that all allegations in Notice of
Motion are general and vague, the plaintiff prayed for rejection of
Notice of Motion.
5. Heard advocate Mr. Mandira Manna for defendant No.5 Bank and
advocate Devang Shah for plaintiff. Advocate for defendant No.5
submitted that after transfer of the said suit from the Hon'ble High
Court to this court, there was no intimation to bank from the earlier
advocate who was appearing in the present matter. She further
submitted that mean while several bank officers of defendant No.5 were
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also transferred. She further submitted that defendant No.5 is a formal
party and only tenant in the suit premises and no prejudice will be
caused, if defendant No.5 is allowed to file written statement by setting
aside the impugned order. She submitted that for negligence on the
part of advocate, defendant No.5 bank should not suffer and injury
should not be caused to the litigant. She further submitted that
procedure of the court is to facilitate justice and it should not be so
construed or use to penalize or rejected for no fault on their part. She
further submitted that defendant No.5 bank came to know about
transfer and pending of the said suit before City Civil Court on 22nd
November, 2017 when, they received Chamber Summons No.1900 of
2017. Therefore, she prayed for allowing defendant No.5 to file written
statement by condoning the delay.
6. As against this advocate Devang Shah for the plaintiff vehemently
opposed Notice of Motion on the ground that reason put forth in
supporting affidavit to Notice of Motion is itself incorrect. He submitted
that defendant No.5 failed to file their written statement before the
Hon'ble High Court and before this court too. He further submitted that
the contention of defendant No.5 that they came to know about present
suit being transferred and pending before this court on 22.11.2017 is
incorrect. He submitted that reason put forth by defendant No.5 bank
cannot be said to be just and reasonable cause for condoning the delay.
Therefore, he prayed for rejection of Notice of Motion.
7. After hearing rival contentions, I have carefully gone through the
pleadings of the parties in present Notice of Motion, in suit and the
roznama. At the outset, I would like to mention here that it is not
disputed by defendant No.4 and even by the applicant bank that
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defendant No.5 is non contesting party to the present suit. The fact that
they are tenant in suit premises is admitted by the plaintiff and also by
the defendants. The entire dispute between parties revolves around the
agreement dated 29.09.1997, to which defendant No.5 has no concern
at all. So also, on perusal of the roznama, it seems that after restoration
of the present suit on 07.09.2017 the plaintiff was directed to serve
notices to other defendant, except defendant No.4, as advocate Almeida
was appearing for defendant No.4. Advocate for the plaintiff filed
notice and proof of service of notice on the defendants vide Exh.4 dated
04.10.2017. On perusal of Exh.4, it is apparent that by way of speed
post defendant No.5 was informed about suit being kept for framing
issue on 04.10.2017. As per postal endorsement the said notice was
received by defendant No.5 on 26.09.2017 itself. Therefore, the
contention of defendant No.5 in their supporting affidavit that they
came to know about present suit being transferred and assigned before
this court on 22.10.2017 is apparently incorrect. The contention of
defendant No.5 that advocate did not inform them about transfer of suit
from the Hon'ble High Court to this court seems to be a funny
statement. Defendant No.5 is a Nationalized bank. They have their
independent legal cell. Surprisingly since 2009 to 2017, defendant No.5
did not take pains to track case record. They were added as defendant
No.5 in the present suit in January, 2009. Defendant No.5 Bank is
coming with version which cannot be accepted.
8. Authorities cited by defendant No.5 will not be helpful to them.
It is not the case wherein litigant is firstly penalized and that too by the
court and that too for no fault on their part. Firstly, irrespective of the
fact whether present Notice of Motion is allowed or not, written
statement of defendant No.5 is filed or not, they being formal party to
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the suit, no prejudice will be caused to them. This in my opinion was
the only reason for defendant No.5 not to file written statement before
the Hon'ble High Court and not to track suit though it was transferred
to this court i.e., for long duration of around 1718 years i.e.,from 1998.
Defendant Bank has not filed written statement with the present Notice
of Motion too. Secondly, it cannot be said that there was any fault on
the part of any other side or court in not intimating the defendant No.5
about present suit. When the suit was transferred to this court, notice
was already published on the official website of the court. When the
plaintiff and other defendants could mark their presence, why not
defendant No.5. No reason is forth coming except for blaming advocate
whose affidavit is not filed on record. So also, it is apparent from
record that it is defendant No.5 alone who is at fault in pursuing
present suit. Therefore, they are reluctant and negligent in pursuing the
present suit. The reason put forth by defendant No.5, in my view, is
neither seems to be correct nor convincing nor just for condoning the
huge delay, not of 97 days but of several years. As such, Notice of
Motion deserves to be rejected. In the result, I proceed to pass following
order.
ORDER
Notice of Motion stands rejected with no order as to costs.
(Dinesh P.Surana)
Judge, City Civil Court,
Date : 05.04.2018. Gr. Bombay.
Dictated on : 05.04.2018
Transcribed on : 06.04.2018
Signed on : 07.04.2018
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“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07.04.2018 11.15 q.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 05.04.2018
Judgment/Order signed by the P.O. on 07.04.2018
Judgment/Order uploaded on 07.04.2018
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