Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1117 OF 2018
IN
S.C. SUIT NO.6840 OF 1997
(HIGH COURT SUIT NO.316 OF 1997)
M/s. Panipat Wool Traders ] … Plaintiffs
V/s.
The Board of Trustees of the Port ]
of Mumbai. ] ... Defendants
Appearances :
Mr. Kantilal Kanojiya, Ld. Adv. for plaintiffs.
Mr. Ravi Irle, Ld. Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 22nd November, 2019
ORAL ORDER
1. This Notice of Motion is taken out by the plaintiff for
condonation of delay of 1510 days for filing the application to set aside
the order of dismissal of the suit dated 21.09.2013.
2. Perused application and say.
MHCC01-001592-1996
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3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing the present
Notice of Motion to set aside order of
dismissal of suit dated 21.9.2013 can be
condoned?
In the affirmative.
2. Whether the order of dismissal of suit
dated 21.9.2013 can be set aside ?
In the affirmative.
3. What Order ? Notice of motion is
made absolute.
REASONS
As to point Nos.1 to 3.
4. Heard both Learned advocates.
5. It is the contention of the plaintiff that he filed the present
suit on or about 10.12.1996 for a sum of Rs.5,83,170 together with
interest on the sum of Rs.3,56,136/ from the date of suit till realization
of payment at the rate of 18% p.a.
6. Defendant is a statutory body constituted by the Central
Government. During the pendency of the said suit the plaintiffs have
been carrying on the business of manufacturing and dealing in all kinds
of woolen yarn, wool and exporters and commission agents at Panipat.
He is resident of Panipat in the State of Hariyana.
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7. Initially the suit was filed before the Hon'ble High Court.
The Hon'ble High Court pleased to frame issues. Plaintiff file evidence
of affidavit on or before 14.9.2009 and the matter was for cross
examination of the plaintiff.
8. The Hon'ble High Court pleased to transfer this suit on or
about October, 2012 to this Court. This suit is renumbered as suit
No.6840 of 1997. The plaintiff and his erstwhile Advocate were not
aware about the transfer of the proceeding. No notice was received
either by the plaintiff or his erstwhile advocate from the Registry of this
Court.
9. Plaintiff is 72 years old. He is diabetic patient. He had
under gone various medical ailments, somewhere in the year 2007. He
had some heart problem in the year 2010. He was hospitalized in the
year 2010. He diagnosed with some blockages in the heart Artery. He
had under gone heart surgery and two stents were implanted. Due to
said circumstances he was completely d.ependant on his erstwhile
advocate.
10. Plaintiff's erstwhile advocate was 84 years old. On
31.12.2017 he called his earlier advocate Shri P.N. Patwardhan to wish
him New Year greetings. The phone call is received by Mr. Sudarshan
son of the advocate Mr. P.N. Patwardhan. He came to know that
advocate P.N. Patwardhan died on 25.07.2017. Mr. Sudarshan gave
him mobile number of the Junior advocate of deceased P.M.
Patwardhan.
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11. Plaintiff contacted to the Jr. Advocate and requested him to
find out the status of the suit. The said junior advocate informed him
that the said suit is dismissed in default on 21.09.2013. Plaintiff
engaged another advocate. His present advocate applied for certified
copy of the entire Roznama and order on 4.1.2018. His present
advocate received Roznama and order on 9.1.2018. Plaintiff came to
know about order of dismissal of the suit only in the 1st week of
January, 2018. Plaintiff could not keep track of the matter because of
his illness. He was under impression that his earlier advocate was
taking care of this suit, therefore, delay be condoned and application be
allowed. Suit be restored to its original stage.
12. Defendants filed reply on 27.4.2018. In brief it is the
contention of the defendant that all the contentions raised in this Notice
of Motion are denied. As per Article 122 of the Limitation Act plaintiff
should have filed the Notice of Motion within 30 days from dismissal of
the suit. There is inordinate delay in filing the Notice of Motion.
Plaintiff did not remain present for crossexamination on four occasions
i.e. on 07.12.2012, 04.2.2012, 11.03.2012 and 22.4.2013 and the
matter was for dismissal on six occasions i.e. on 18.6.2013, 24.6.2013,
29.6.2013, 20.7.2013, 03.08.2013 and 21.09.2013. The plaintiff was
negligent to proceed with the matter.
13. Even after transfer of the suit from Hon'ble High Court to
this Court there were many dates. Therefore, Notice of Motion be
dismissed with costs.
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14. Plaintiff filed rejoinder on 7.7.2018. Plaintiff denied all the
adverse contentions raised in the reply and reiterated contentions raised
in the Notice of Motion.
15. I have gone through the Article 122 of the Limitation Act.
As per said Article there is thirty days limitation to file Notice of Motion
to set aside the order of dismissal. According to the plaintiff, Notice of
transfer of the suit to this Court is not received from the Registry of this
Court either to him or his erstwhile advocate, therefore, plaintiff was
not aware about the transfer of the suit to this Court. It is also one of
the contention that he was suffering from illness. He had under gone
heart surgery. He is from Panipat in the State of Hariyana. Plaintiff
filed affidavit in support of the Notice of Motion. Considering the
reasons mentioned in the Notice of Motion, I am of the opinion that
delay in filing this Notice of Motion, to set aside the order of dismissal
can be condoned under Section 5 of the Limitation Act to decide the
suit on merit. There is delay in filing the Notice of Motion to set aside
the order of dismissal. The delay can be compensated by imposing
some costs. Hence, I record my findings on point Nos.1 and 2 in the
affirmative and point No.3 the Notice of Motion is made absolute as per
final order. Hence following order:
ORDER
Notice of Motion 1117 of 2018 is made absolute as under:
1. Delay in filing Notice of Motion to set aside the order of dismissal
dated 21.09.2013 is hereby condoned subject to costs of
Rs.10,000/. Time granted till 09.12.2019 to deposit the said
costs in the Court or it be given to the defendant.
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2. The order dated 21.09.2013 dismissing the suit in default is
hereby set aside subject to payment of the said costs.
3. After compliance of the order of the costs, the said suit No.6840
of 1997 be restored at its original stage. Both the parties are
hereby directed to remain present before this Court on
20.12.2019 at 11.00 a.m.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 22/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 22/11/2019.
Transcribed on : 25/11/2019.
Signed on : 26/11/2019.
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.11.19 at 11.50 a.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 22.11.19
Judgment/order signed by P.O. on 26.11.19
Judgment/order uploaded on 28.11.19
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