Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1179/18 in Suit 7484/05
MHCC010037722018
CNR No. MHCCO1-003772-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1179 OF 2018
IN
S. C. SUIT NO. 7484 OF 2005
(HIGH COURT SUM. SUIT NO.1598 OF 2005)
Prabodh Narottamdas Shah ]
10, Beach View, 4th floor, Chowpatty, ]
Sea Face, Mumbai 400 007 ]..Plaintiff
Vs.
1. Kanji Manji Kothari and Company ]
49, Masjid Bunder Road, Mumbai 400 003 ]
2. Devendra K. Thakkar ]
3. Indrajit K. Thakkar ]
4. Laxmidas K. Thakkar ]
5. Rameshchandra K. Thakkar ]
6. Jatin M. K. Thakkar ]
7. Surmaben K. Thakkar ]
all having same address at Flat No.58 ]
and 117, 2nd floor, Samrat Ashok CHS Ltd. ]
7, Ratilal Thakkar Road, Mumbai 400 006 ]
8. Mahendra K. Thakkar ]
Flat No.58 and 117, 2nd floor, Samrat Ashok ]
CHS Ltd., 7, Ratilal Thakkar Road, Mumbai 6 ]..Defendants
Punam Garde Advocate for the Plaintiff
Arun Mehta Advocate for the Defendant
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G. BORLEPWAR
(COURT ROOM NO. 20)
DATED : 14th March, 2020.
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ORAL ORDER
1. The plaintiff took out this Notice of Motion to set
aside the order of dismissing the suit dated 28.08.2015 for want of
prosecution and to restored the suit.
2. Perused Notice of Motion and affidavit in support of Notice
of Motion. Reply of defendant No.2, reply of defendant No.3 to 7.
3. Heard both the advocates, perused Notice of Motion,
affidavit in support of Notice of Motion and reply filed to the
Notice of Motion.
4. Following points arise for my determination and I record my
findings thereon for the reasons mentioned below.
POINTS FINDINGS
1) Whether order of dismissing of suit on
28.08.2015 can be set aside? Affirmative
2) Whether the suit can be restored ? Notice of Motion
allowed as per final
order
R E A S O N S
5. In brief, it is the contention of the plaintiff that the
suit was for the recovery of amount along with interest mentioned
in the plaint. Defendants duly served with writ of summons but
they did not appeared therefore the suit was decreed in favour of
the plaintiff against the defendants under order dated 27.02.2007.
The Execution Application was filed bearing No.557 of 2010 in
the Hon’ble High Court, notice under Order XXI Rule 22 of CPC
was issued against defendants. Defendant took out Chamber
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Summons to stay the execution of the decree, plaintiff filed reply
to the Chamber Summons. Defendant also took out Notice of
Motion No.2842 of 2010 to set aside the decree dated 27.02.2007.
The plaintiff filed reply in the said Notice of Motion. The court set
aside the decree dated 27.02.2007 as per the order dated
17.04.2012 and directed the defendants to deposit Rs.12,00,000/-
in the court. Defendants were allowed to file the written
statement.
6. After passing order dated 17.04.2012 the advocate of
the plaintiff advised the plaintiff that the defendant will deposit
Rs.12,00,000/- in the court and file their written statement.
Thereafter matter will come for framing issues and after framing
issues matter will come for leading evidence of the plaintiff. Thus
advocate for the plaintiff also inform that whenever matter comes
for leading evidence then he will informed the plaintiff
accordingly. Thereafter continuously followed with the advocate of
the plaintiff. The advocate of the plaintiff informed the plaintiff
that defendants did not filed written statement. And he informed
that plaintiff should not worried and whenever the matter will be
for leading evidence, after filing written statement of defendants
he will informed the plaintiff for leading evidence.
7. The plaintiff is senior citizen, he is having blockage in
the heart, he is suffering from diabetic, blood pressure, hyper
tension, knee problem and various others old age related
problems. He is also suffering from paraferal circulation disease.
He was admitted in the Bhatia Hospital in 05.05.2017. Therefore,
because of his illness he could not contact his advocate. He called
his previous advocate in the last week of February 2018. His
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previous advocate informed him that he will check the status and
further informed him. His previous advocate avoided to meet him
and sent him messages that he is busy in some meeting.
Thereafter his previous advocate stopped receiving his phone calls.
Thereafter he immediately in the first week of March, 2018
contacted the present advocate and asked him to provide him the
status of the said suit. The present advocate informed him that the
said suit was dismissed on 28.08.2015. The present advocate took
the inspection of the said matter and came to know that the
matter is transferred to the City Civil Court from the Hon’ble High
Court. On 28.08.2017 nobody was present from the plaintiff in the
court therefore the suit dismissed for default.
8. There was no intention of the plaintiff for not
remining present in the court. Hence the said order be set aside.
9. In brief it is an intention of defendant No.2 that all
adverse contentions raised by the plaintiff are denied. The Notice
of Motion is no maintainable. Advocate for the plaintiff was
present after transfer of the matter from Hon’ble High Court to the
City Civil Court which can be seen from Roznama dated
18.02.2014 and 02.03.2015. The plaintiff has made false
statement in the affidavit in support of his Notice of Motion,
therefore necessary action is required against the plaintiff for
perjury. The Plaintiff is not entitled for any relief. Hence Notice of
Motion is dismissed.
10. In brief its contention of the defendant No.1 and
defendant Nos.3 to 7 in their reply that advocate for the plaintiff
was present before the court after transferring the matter by the
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Hon’ble High Court to this court. They denied of the adverse
contention raised in the Notice of Motion. According to them
Notice of Motion is not maintainable. In brief they have supported
defendant No.2.
11. Its further contention of defendants that plaintiff has
patently made false statement with malafide intention and
mislead the court knowingly and believing that the said statement
on oath is false.
12. Learned advocate appearing for defendants relied
upon the judgment of Hon’ble Supreme Court of India in the case
of Kishore Samrite V/s. State of Uttar Pradesh and Ors. reported in
Criminal Appeal No.1406 of 2012, decided on 18th October, 2012,
in Supreme Court Cases 398. The Learned advocate appearing for
defendants submitted that plaintiff came to the court with unclean
hands. He also submitted that the plaintiff did not said correct
facts before the court and therefore plaintiff is not entitled to be
heard. I have gone through the citation, it is held in the citation
that litigants who intend to deceive and mislead the court and
initial proceeding without full disclosure of facts and came to the
court without clean hands are neither to be entitled for heard on
merits of the court nor entitled to any relief.
13. Perused the plaint, written statement of defendant
No.2 and written statement of defendant Nos.1, and 3 to 8.
14. The plaintiff pleaded in the plaint that the defendant
No.1 is a Partnership firm duly registered under the Partnership
Act. The defendant Nos.2 to 7 are the partners of defendant No.1
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Partnership firm. The defendant No.8 is father of defendant No.6
and husband of defendant No.7. On 25.03.2001 defendant No.8
Mr. Mahendra K. Thakkar approached to the plaintiff and
requested him to advance loan of Rs.12,00,000/- to the defendant
No.1 Partnership firm for business purpose. Plaintiff advance loan
of Rs.12,00,000/- by giving two cheques dated 29.03.2001 to the
defendant No.1 partnership firm. Then suit is filed for recovery of
loan of Rs.12,00,000/- alongwith interest against defendants.
15. Perused the written statement of defendants,
according to the defendants they have repaid Rs.10,05,995/-.
Defendants have not raised various points in the writtens
statement.
16. According to the defendants, advocate for the plaintiff
was very much present after transfer of the matter from the
Hon’ble High Court to the City Civil Court. Perused roznama dated
18.02.2014, it is mentioned there in that advocate for plaintiff was
present. The name of the advocate in rozanama dated 18.02.2014
appearing for plaintiff is not mentioned so it is difficult which
advocate appeared for plaintiff on 18.02.2014. Perused rozanama
dated 02.03.2015 it is mentioned there in that advocate Sneha
Agrawal was present for plaintiff. Learned advocate appearing for
defendants submitted that false statement is made before the
court on oath by the plaintiff. According to the plaintiff previous
advocate of defendants, after sometime stopped receiving his
phone calls. According to the plaintiff his previous advocate did
not inform him the stage of the matter and did not inform him the
status of the suit and therefore he could not remain present before
the court. And, he also could not remain present before the court
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because of his illness and old age problems. If for a moment it is
presumed that advocate for the plaintiff was present before this
court, after transferring the matter from Hon’ble High Court to
this court. It does not mean that plaintiff was present. It was the
duty of the plaintiff to keep in touch with his advocate and to
know the status of the case time to time.
17. Learned advocate for the defendants relied upon the
citations of Hon’ble Supreme Court of India in the case of Sitaram
Ramcharan and Others V/s. M.N. Nagrashana reported in AIR
1960 Supreme Court 260. The Hon’ble Supreme Court clearify
what the meaning of sufficient clause.
“It is held in paragraph 19 with the party has to satisfy the
court in dealing with the question of condoning delay
under Section 5 of the Limitation Act the party has to
satisfy the court that he had sufficient cause for not
preferring the appeal or making the application with the
prescribed time.”
18. The Learned advocate appearing for the defendants
relied upon the citation in the case of P.K. Ramchandran V/s. State
of Kerala and Anr. reported in Supreme Court of India in AIR 1998
Supreme Court 2276. The Hon’ble Supreme Court held that
“At the relevant time Advocate General’s office was fed up
with so many Arbitration matters pending consideration”.
Can hardly be said to be reasonable, satisfactory or even
proper explanation of delay.
19. The Learned advocate for the plaintiff relied upon the
citation of Madhya Pradesh High Court in the case of Pooranchand
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Mulchand Jain V/s. Komalchand Beniprasad Jain decided on
11.07.1961. In the cited case question was referred by the Hon’ble
Single Judge. The reference for decision on the question as to the
period of limilation for an application for restoration of an
application under Order 9 Rule 9 of C.P.C. which itself dismissed in
default. The Hon’ble High Court held that :
“Dismissal in default of an application for the restoration of a
suit under Order 9 Rule 9 of C.P.C. can be set aside in
exercise of the inherent powers of the court under section
151 of C.P.C. and that the exercise of inherent powers is not
fettered by any rule of limitation.
20. The Learned advocate for the plaintiff relied upon the
citation of Hon’ble Supreme Court of India in the case of Collector
Land Acquisition V/s. Mst. Katiji and Ors. decided on 19.02.1987.
It is held a liberal approach should be taken while deciding an
application for this condonation of delay.
21. Perused Roznama dated 28.08.2015. On the said date
the suit was dismissed in default for want of prosecution and
amount of Rs.12,00,000/- deposited by the defendants on
09.07.2012 was directed to be return to the defendant No.1 firm
alongwith interest if any, after appeal period is over.
22. The said Roznama dated 28.08.2015 runs as under :
“None present for Plff.
Adv. Harshad Thakkar for defts. 1 and 3 to 8 present.
Adv. Arun Mehta for deft. No.2 present.
Perused record and roznama. Plaintiff is constantly absent
since long. Matter is pending for evidence since long.
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Plaintiff failed to lead evidence. Nor sought any
adjournment. It appears that plff. Lost the interest in
prosecution of the suit. Ample chances were given to plff.
Today when the suit is called for hearing, only defendants
appeared.
Ld. Advocate for deft. No.1 filed an application (Ex.6) for
refund of the amount of Rs.12,00,000/- deposited by the
defendants in view of the order passed by Hon’ble Justice
Shri. Kathawala dtd.17.04.2012. The amount was deposited
as per receipt no.1265 on 09.07.2012.
Perused the record. As per order dtd.17.04.2012 the ex-parte
decree was set aside on condition to deposit amount of
Rs.12,00,000/-. The amount was deposited accordingly. Thus
this amount is liable to be refunded to the defendants.
Hence following order :
Suit is dismissed in default for want of prosecution.
No order as to cost. An amount of Rs.12,00,000/- deposited
by defendants on 09.07.2012 be returned to defendant no.1
firm alongwith the interest if any after appeal period is over.
Original documents if any be returned to the parties.”
23. Perused Order 9 Rule 3 of the Code of Civil
Procedure. As per the said Rule where neither party appears
when the suit is called on for hearing, the Court may make an
order that the suit be dismissed.
24. Perused Order 9 Rule 4 of the Code of Civil
Procedure. As per the said Rule where a suit is dismissed under
Rule 2 or Rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit, or he may apply for an order to set
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the dismissal aside, and if he satisfies the Court that there was
sufficient cause or for his non-appearance, as the case may be, the
Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.
25. Perused Order 17 Rule 2 and 3 of the Civil Procedure
Code. It runs as under:
“Rule 2. Procedure if parties fail to appear on day
fixed. “Where, on any day to which the hearing of
the suit is adjourned, the parties or any of them fail
to appear, the Court may proceed to dispose of the
suit in one of the modes directed in that behalf by
Order IX or make such other order as it thinks fit.
Where the evidence or a substantial portion of the
evidence of any party has already been recorded
and such party fails to appear on any day to which
the hearing of the suit is adjourned, the Court may,
in its discretion proceed with the case as if such
party were present.”
“3. Court may proceed notwithstanding either party
fails to produce evidence, etc.- Where any party to a
suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to
the further progress of the suit, for which time has
been allowed, the Court may notwithstanding such
default,-
(a) if the parties are present, proceed to decide the
suit forthwith; or
(b) if the parties are, or any of them is, absent,
proceed under rule 2.”
26. Perused article 122 of Limitation Act, it provides 30
days time to restore the suit from the date of dismissal of suit.
27. Perused Section 5 of the Limitation Act, 1963. As per
the said provision any appeal or any application, other than an
application under any of the provisons of Order XXI of the Code of
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Civil Procedure, 1908, may be admitted after the prescribed
period, if the applicant satisfies the Court that he had sufficient
cause for not preferring the appeal or making any application
within such period.
28 According to the plaintiff he could not remain present
before the court because of his illness and old age problems and
his previous advocate did not inform him the status of the suit. I
am of the opinion that it was the duty of the plaintiff to keep in
touch with the matter. There is delay in filing the Notice of Motion
to set aside the suit order. Said order can be set aside subject to
payment of some cost. Hence I record my findings to Point No.1 in
affirmative and Point No.2 Notice of Motion allowed as per final
order :
O R D E R
1. Order of dismissal of suit in default for want of prosecution
dated 28.08.2015 is hereby set aside subject to cost of
Rs.6,000/-
2. Time granted till 07.04.2020 to deposit the said cost in the
court or plaintiff is at liberty to pay the cost of Rs.2,000/- to
the defendant No.2 and Rs.3,000/- to defendant No.1 and
defendant No.3 to 7 on or before 07.04.2020.
3. After compliance to the order of the cost the suit be restored
and posted to the plaintiffs evidence on 20.04.2020 at 11.00
O’clock.
(SHANKAR G. BORLEPWAR)
Date : 14/03/2020 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 14.03.2020
Transcribed on : 14.03.2020
Signed on : 21.03.2020
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.06.2020 at 2.55 a.m.
UPLOAD DATE AND TIME
JANHAVI S. CHAVAN
NAME OF STOP GAP
STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 14.03.2020
Judgment/order signed by P.O. on 21.03.2020
Judgment/order uploaded on 15.06.2020
Due to Covid-19 lockdown
the court was not functioning
and therefore order is
uploaded on 15.06.2020
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