Final Order 1

Order Details: Notice of Motion
Pdf Text: NM1179/2019 SUIT 2157-2016 1
CNR NO. MHCC010030412019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1179 OF 2019
IN
S.C. SUIT NO. 2157 OF 2016
Mr.Krishnakumar Mahadev Patki .. Plaintiff
Versus
Mr.Dilip Shrinivas Hate .. Defendant
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.09)
DATE : 15th April 2019
Mr. Qureshi ld. adv. for Plaintiff.
Mr. Sunil Sudan ld. adv. for Defendant.
O R D E R
1. This notice of motion is taken out by defendant Mr.Dilip Hate for
condoning the delay of 273 days caused in filing Written Statement by
defendant in support of notice of motion. Defendant has filed his
affidavit contending that the matter listed on the board on 13/03/2019
for taking steps. Court has observed that on failure of taking steps, suit
would proceed as undefended.
2. On 14/06/2018 the court has noted down in roznama that writ of
summons was waived by advocate for defendant and the matter was
adjourned to 05/07/2018 for written statement. As writ of summons
was waived on 14/06/2018 delay of 273 days is caused in filing written
statement. On 05/07/2018 matter was referred for mediation and on
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NM1179/2019 SUIT 2157-2016 2
15/10/2018 mediation report was received showing that mediation had
failed. Thereafter, the suit was adjourned to 20/12/2018 on same date
court had granted time for filing written statement. Thereafter, the
matter was adjourned to 13/03/2019. It is mentioned in the affidavit of
defendant that after failure of mediation also party has held several
meetings for settlement of the dispute amicably. However, no
settlement was arrived at. Advocate for defendant had tendered draft
notice of motion on 13/03/2019, therefore, defendant has prayed to
make absolute the notice of motion.
3. Plaintiff has filed pursis contending that reply of notice of motion
No.1170/2019 in Suit No.2150/2016 may be considered for decision of
this notice of motion. In reply of notice of motion No.1172/2019, it is
contended by filing affidavit of Krishnakumar Patki that it is contended
that the notice of motion and affidavit filed in its support are contrary
to the record and true facts are not brought before the court.
4. Plaintiff Krishnakumar Mahadev Patki has resisted the notice of
motion by filing pursis and relied upon affidavit of Nirav. It is further
contended that plaintiff denied all the contentions raised in the notice
of motion and affidavit. According to plaintiff, despite first appearing
before the court on 19/09/2016, defendant deliberately elected not to
file his written statement and considering this conduct of defendant, if
he will not be permitted to file written statement, no prejudice would
cause to the defendant. Further, it is contended that defendant's prayer
for preparing him to file written statement is also barred by time limit,
hence, plaintiff have prayed for condonation of delay.
5. Heard advocate Shri.Sunil Sudan for defendant and plaintiffs
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advocate Shri.Qureshi, it is clearly admitted by plaintiff that matter was
referred for mediation and parties were thinking for settlement.
However, mediation failed and settlement could not be arrived at all.
Considering the fact that parties were trying to settle the matter , I find
that delay caused in filing the written statement can be condoned
because it is always better for plaintiff to have contested decree if at all
he is entitled to. However, considering the delay of 273 days caused in
filing written statement, I find that notice of motion can be allowed
subject to cost of Rs.1500/ to be paid to the plaintiff. Hence, I proceed
to pass the following order.
O R D E R
1. Notice of motion No.1179/2019 is made absolute in terms of
prayer clause (a) of notice of motion subject to cost of Rs.1500/ to be
paid by defendant to plaintiff.
2. It is made clear that after paying the cost by defendant to
plaintiff, the written statement filed by defendant on record will be
exhibited and accepted.
(K.P.Nandedkar)
Judge,
City Civil Court,
15/04/2019 Gr.Bombay
Dictated on :15/04/2019
Transcribed on :15/04/2019
HHJ Signed on :16/04/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
18/04/2019 2.00p.m Mrs.J.V.Pawar
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.09)
Date of Pronouncement of Judgment/Order. 15/04/2019
Judgment/order signed by P.O on 16/04/2019
Judgment/order uploaded on 18/04/2019
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