Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 855/18 in L.C.Su. No.4881/10
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.855 OF 2018
IN
L.C.SUIT NO.4881 OF 2010
Raheja CrestIII Coop. Hsg. Soc. Ltd. Plaintiff.
V/s.
1. Classic Developers
2. Raheja CrestI Coop. Hsg. Soc. Ltd.
3. Raheja CrestII Coop. Hsg. Soc. Ltd.
4. Sabita R. Nagang
5. Municipal Corporation for Greater Mumbai. Defendants.
Advocate Mr. Sushil Shukla for Applicant/Deft. No.4.
Advocate J.K. Shah for Plaintiff.
Advocate Ms. Kamble for Deft. No.5/BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 11th JUNE, 2018
ORAL ORDER
The present notice of motion is taken out by defendant
no.4 for setting aside No WS Order passed against them on 25.11.2017
and to condone the delay of 438 days for filing written statement and
allow them to file written statement on record.
2. The defendant no.4 submits that the plaintiffs have filed
Suit No.3284/10 before Hon'ble High Court, in which defendant no.4
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has filed application under Section 9A of Code of Civil Procedure
(hereinafter referred to as CPC for short) on the point of limitation
issue. In between the said suit is transferred before this Court and this
Court has decided the application under Section 9A of CPC on
19.10.2016 and thereby rejected the notice of motion filed by the
defendant no.4 on the point of open space of alleged apartment of the
society is mixed question of law and facts and hence, said issue could
not be decided as preliminary issue under Section 9A of CPC. The
defendant no.4 preferred an appeal from said order No. (L) 53/17
before Hon'ble High Court. Thereafter during the pendency of suit while
finalizing written statement, it is realized the the Classic Developer,
against whom the plaintiffs have filed above suit, had ceased to exist
and filing of the written statement showing Classic Developers as
Defendant no.1 would be improper. Therefore, defendant no.1 without
amendment of the cause title unable to file its written statement. The
defendant no.1 took Chamber Summons No. 61/17 for amendment of
the plaint on 05.10.2017. At the time of hearing of said chamber
summons the Court has observed that it was filed by the plaintiffs to
seek amendment to the plaint of suit and defendant cannot be seek the
amendment in the plaint. Therefore, defendant no.1 not pressed said
chamber summons and informed the advocate for the plaintiff by their
letter dated 19.10.2017 to amend the plaint. By the order dated
05.10.2017 the Court adjourned the above suit on 28.11.2017 for No
WS Order against defendants and also advised defendant no.1 to file
written statement in the above suit by way of abundant caution. The
notice of motion no.749/12 of the defendant no.1 was dismissed by this
Court on 19.10.2016 and adjourned the matter on 17.11.2016 for filing
of written statement. The time for filing written statement of defendant
no.1 began to run from 17.11.2016. As there is delay of 438 days in
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filing the written statement, defendant no.4 has a good chance of
succeeding in the matter on merits. Therefore, they prayed to set aside
No WS Order passed against them on 30.01.2018.
3. Notice of the present notice of motion issued to plaintiffs.
They filed their say, thereby strongly objected present notice of motion
on the ground that the present notice of motion is nothing but abuse
and misuse of process of Law. There is gross delay for filing notice of
motion, which is barred by limitation. There is delay of more that 7
years in filing written statement which defendant no.4 has not
explained. Hence, prayed to reject the notice of motion.
4. Heard the Ld. Counsel Mr. Sushil Shukla for defendant
no.4 and advocate J.K. Shah for Plaintiff.
After perusal of record it is observed that earlier the said
suit was filed before Hon'ble High Court, which is transferred before
this Court in the year 2010 and renumbered. It is admitted fact that the
notice of motion no.749/12 filed by defendant no.1 under Section 9A of
CPC, arising limitation point as a preliminary issue, which after hearing
of both the parties, said notice of motion was dismissed by this Court on
19.10.2016. Thereafter defendants moved the chamber summons but
said chamber summons not pressed by defendant no.1 on 05.10.2017
and then adjourned the matter on 28.11.2017 for passing No WS Order
against defendants. Before that the said matter never kept for filing the
Written statement. On 28.11.2017 defendant no.1 filed notice of
motion. From the record it is observed that as the notice of motion on
the point of preliminary issue was pending before the Court, therefore,
defendants have not filed their written statement on record and their
limitation period raised from the date of disposal of said notice of
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motion. For adjudication of the present suit it is necessary to give
opportunity to defendant no.4 to file their written statement on record.
Considering the said fact, in the interest of justice by imposing costs the
defendant has liberty to file their written statement on record. In the
circumstances, I pass following order :
ORDER
1. Notice of Motion No.855 of 2018 is allowed.
2. The delay if any for filing the written statement, is
condoned, subject to cost of Rs.10,000/ to be paid to plaintiff.
3. The defendant no.4 is directed to file their written
statement on or before next date.
4. NM is disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 11/06/2018.
Dictated on : 11/06/2018
Transcribed on : 12/06/2018
Signed on : 14/06/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/06/2018 At 4.59 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
11/06/2018
Judgment/Order signed by P.O. on 14/06/2018
Judgment/Order uploaded on 14/06/2018
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