Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC010030272019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1164 OF 2019
IN
SUIT NO.201 OF 2016
M/s. Jayantilal Khandwala & Sons Pvt. Ltd., ...Plaintiff
V/s.
The United India Insurance Co. Ltd. & Anr. ...Defendants.
Appearances:
Learned Adv. Mr. Mehul Thakkar for plaintiff.
Learned Adv. Mr. Vinod Kumar Gupta for defendant No.1.
None appeared on behalf of defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SANDIPKUMAR C. MORE
(C.R.No.04)
DATED : 05th November, 2019.
: ORAL ORDER :
The plaintiff has taken out this Notice of Motion for setting aside
the order dated 14.12.2018 whereby, the present suit was dismissed in
default. As such, the plaintiff has claimed restoration of the suit to its
original stage.
2. According to the plaintiff, the suit was fixed for filing evidence by
plaintiff on 14.12.2018. However, on the said date, the advocate for
plaintiff Mr. Harshad Trivedi was absent due to paralytic attack.
Moreover, the plaintiff was also not present on the said date. Thus, the
suit was dismissed in default by the then Presiding Officer.
3. On the contrary, the advocate for defendant No.1 strongly
opposed the Notice of Motion by filing written say on affidavit in
support of the said Notice of Motion, on the ground that the Notice of
Motion is time barred.
4. Heard rival submissions. Also perused the documents on record.
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5. Admittedly, under order dated 14.12.2018, the then Presiding
Officer had dismissed the suit of the plaintiff in default. However, it was
only the first date after the issues were framed. Moreover, it appears
that advocate for plaintiff was also unable to attend on the said date
due to his illness. Further, considering the date of filing of this Notice of
Motion i.e. 14.01.2019, apparently it is time barred since plaintiff was
under obligation to take out this Notice of Motion within 30 days. As
such, there appears delay of two days in taking out this Notice of
Motion. There is no prayer in this Notice of Motion about condonation
of such delay. However, since the plaintiff is ready to prosecute his
claim diligently henceforth, one opportunity needs to be given to him.
The inconvenience caused to the other side, can be compensated by
awarding suitable costs. Hence, I pass the following order.
: ORDER :
1. The Notice of Motion No.1164 of 2019 is hereby allowed in
terms of prayer clause (a), subject to costs of Rs.2,000/ to be
paid by plaintiff to defendant No.1, within one month of this
order.
2. The dismissal order of suit dated 14.12.2018 is hereby set
aside & delay in filing this Notice of Motion is also condoned.
3. The suit of the plaintiff be restored to its original stage, after
deposit of costs.
4. Notice of Motion No.1164 of 2019 is disposed off accordingly.
(SANDIPKUMAR C. MORE)
1st Additional Principal Judge,
(C.R.No.4)
Date : 05.11.2019. City Civil Court, Gr. Mumbai
Dictated on : 05.11.2019.
Transcribed on : 05.11.2019.
Signed on : 05.11.2019.
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NM 1164/19 in SU 201/16 .. 3 .. Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.11.2019, at 05.55 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S.C. More
Court Room No.4
Date of Pronouncement of Judgment/order 05.11.2019
Judgment/order signed by P.O. on 05.11.2019
Judgment/order uploaded on 06.11.2019
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