Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 908/18 (Suit 1062/15)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 908/2018
IN
NOTICE OF MOTION NO. 991/2017 (Disposed of)
IN
S .C. SUIT NO. 1062/2015 (Disposed of)
Umesh Bhikshapati Chary ..Applicant
In the matter between
Umesh Bhikshapati Chary .. Plaintiff
V/s.
Pramod Ramji Dhamankar ..Defendant
Appearance:
Adv. Ms. Arya Ambre for plaintiff.
Adv. Ms. Sayali Apte for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 5.11.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of applicant Umesh B. Chary and documents filed on record vide Exhs.A
to D. I have also perused affidavit in reply filed on behalf of the
defendant Pramod R. Dhamankar. The N/M is strongly opposed by the
defendant.
2. I have heard Ld. Counsels for both sides.
3. It is submitted on behalf of the plaintiff that, the order
passed by this court on 15.11.2017 in Notice of Motion No. 991/2017,
dismissing the Notice of Motion for want of prosecution vide Ex.A filed
with this Motion, needs to be set aside and the Notice of Motion
deserves to be restored by condoning the delay, if any, in the interest of
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justice. Ld. Counsel for the plaintiff/ applicant has relied upon the
affidavit filed by Umesh Chary and documents on record in support of
the Motion. It is submitted that, S.C Suit No.1062/2015 was decreed
on 28.1.2016 in view of MOU entered into between the parties on
10.10.2014 and therefore, consent terms were arrived at between the
parties on 28.1.2016, however it was submitted that the settlement
which was arrived at between the parties on the basis of MOU has not
been acted upon fully and finally by the defendant. The Main terms and
condition of the settlement between the parties were contained in
clauses no.2,6,7 to10 and the parties were expected to act upon the said
terms and conditions. One of the conditions of the settlement was that,
Cr. W.P. No.461/2016 filed by the plaintiff/applicant before Hon'ble
High Court for quashing an FIR No.287/2015 was to be acted upon by
the parties, however the defendant deliberately failed to appear before
the Hon'ble High Court at the time of hearing and therefore, the said
W.P.No.461/16 was withdrawn by the plaintiff. Under the above
circumstances, the plaintiff/ applicant had taken out a Notice of Motion
No. 991/17 for restoration of the suit. It was listed before this court on
15.11.2017. When the matter was called out, the applicant/ plaintiff
was present but advocate for defendant was not present and the matter
was again called out at 4.25 pm. The plaintiff / applicant was held up
in another Court and could not attend the matter before this court and
the Notice of Motion came to be dismissed by this court for want of
prosecution.
4. It is submitted that, the absence of the applicant/ plaintiff
before this court on 15.11.2017 was not deliberate or intentional but it
was justified by the circumstances narrated above. In view of the fact
that, the MOU between the parties has not been fully and finally acted
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upon by the defendant and therefore, it has become necessary for the
plaintiff/ applicant to get S.C Suit No.1062/15 restored to the file and
for that purpose, it is just and necessary in the interest of justice to
restore the N/M No.991/17 by setting aside the dismissal order dated
15.11.2017.
5. Ld. Counsel for the defendant has strongly opposed the
Motion and relied upon the affidavit in reply filed by defendant Pramod
Dhamankar. It is submitted that, original S.C Suit No. 1062/15 has been
disposed of in terms of consent decree on the basis of MOU, which has
been acted upon by the parties and present Motion is taken out by the
plaintiff/ applicant unnecessarily, only to harass the defendant and it is
not maintainable in law. Ld Counsel for the defendant has relied upon
para3 of the affidavit and pointed out that, the defendant has
discharged his obligation by taking necessary steps and given affidavit
on 28.1.2016 making it clear that the defendant had no wish to
prosecute the case against the plaintiff/ applicant on the basis of FIR
registered at Wadala TT police station. On the basis of said affidavit, the
applicant/ plaintiff could have very well proceeded further with the Cr.
W.P. for quashing the FIR in C.R. No.287/15 dated 23.6.2015, however
the plaintiff/ applicant has withdrawn the said W.P. for the reasons best
known to him. Under the above circumstances, the defendant cannot
be blamed for not taking steps for complying with the terms and
conditions of MOU and therefore, there is no substance in the Motion
and it is liable to be dismissed.
6. After going through the pleadings and documents filed on
record and after taking into consideration oral submissions made on
behalf of both sides, it appears that, the terms and conditions of the
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MOU between the parties have not been fully and finally acted upon by
the defendant and therefore, the plaintiff/ applicant is seeking
restoration of the Notice of Motion No.991/17, which was filed for
restoration of the S.C Suit No.1062/15 by setting aside the terms and
conditions between the parties. It is also clear from the documents on
record that, on 15.11.2017, the plaintiff was present. There was
conditional order in N/M No.991/17 regarding dismissal of the said
Motion for want of prosecution dated 19.8.2017. It is thus clear that,
though the above order of dismissal of the Notice of Motion dated
15.11.2017 by this court is formal order, it has resulted into failure of
justice and therefore, present N/M deserves to be allowed subject to
reasonable cost. Hence, I proceed to pass following order:
ORDER
Notice of Motion No.908/2018 is hereby allowed and
made absolute in following terms:
1. Notice of Motion No. 991/2017 shall stand restored to
the file by setting aside dismissal order in default subject
to plaintiff/ applicant paying cost of Rs.2,000/ to the
defendant within four weeks from today.
2. If the plaintiff / applicant complies with the above
directions then the office shall restore the N/M
No.991/17 and place before this court for passing further
order.
3. In case the plaintiff/ applicant fails to comply with the
above directions then the N/M No. 908/2018 shall stand
dismissed for want of compliance.
4. Parties shall act on the authenticated copy of today's
Roznama.
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5. Sheristedar to provide the authenticated copy of today's
Roznama to the both parties for information and
necessary action.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 5.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 5.11.2019
Typed on : 5.11.2019
Signed by HHJ on : 6.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.11.19
TIME: 4 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 5.11.2019
Judgment/ order signed by P.O on 6.11.2019
Judgment/ order uploaded on 7.11.2019
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