Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1464 OF 2019
IN
S.C. SUIT NO.2142 OF 2015
M/s. Chowgule Construction Chemicals ]
Pvt. Ltd. ] … Applicant
In the matter between
M/s. Chowgule Construction Chemicals ]
Pvt. Ltd. ] … Plaintiff
V/s.
Mr. Sanjoy Senpati, ]
Webworkz Interactive, ] ... Defendant
Appearances :
Ms. Shilpa Madki Adv. for plaintiff.
Ms. Shruti Rane, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 16th December, 2019
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for
condonation of delay in filing application for restoration of suit.
MHCC01-003860-2019
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion and affidavit in reply of the defendant. Heard plaintiff
advocate.
3. Suit is dismissed for want of prosecution on 16.2.2019.
The Notice of Motion is filed on 27.3.2019. Perused written notes of
arguments filed by defendant through advocate vide Exh.7 dated
22.10.2019.
4. 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 application
for restoration of suit can be condoned?
In the affirmative.
2. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 & 2.
5. In brief it is contention of the plaintiff that the plaintiff is
Company. Advocate Gaurai Deshpande was handling this matter. Due
to her personal difficulty she left this matter. She has given no
objection to engage other advocate. Therefore, plaintiff engaged new
advocate.
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6. Earlier Mr. Sagar Ugale was pursuing the matter, but due
to some conflict with the plaintiff's company Mr. Ugale left his services
in the month of October, 2018 without handing over all the information
therefore applicant /plaintiff was not able to follow up of the matter.
7. The applicant is appointed by the plaintiff's Company and
directed to take charge of all the legal disputes pending in every Court
in respect of plaintiff's company. The applicant came to know about the
present suit on next date i.e. 16.2.2019. He attended the matter and
requested time to take necessary steps. The suit was in dismissal
caption. Therefore, the Court has directed him to file necessary
applications for removal of the said caption of dismissal of the suit. The
applicant approached the present advocate and requested to file
necessary application. The suit is dismissed in default on 16.2.2019.
The applicant informed all the said facts to the Managing Director of
the plaintiff's company. Accordingly meeting held on 21.2.2019. Board
of the Company passed resolution. As per the said resolution the
applicant is appointed in this matter. He received copy of the final
board resolution by email on 12.03.2019. He contacted the present
advocate. His advocate was out of Mumbai. Therefore, there is delay
of 9 days in filling application to restore the suit. Therefore, delay of 9
days be condoned in filling application for restoration of suit.
8. Defendant filed reply. In brief, it is contention of the
defendant that plaintiff has cooked up a false story to obtain order from
the Court. All the adverse contentions are denied. The plaintiff is
making false statement that the applicant was present on the date of
dismissal of the suit. Copy of Roznama regarding dismissal of the suit
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does not disclose that the applicant was present before the Court.
Therefore, this Notice of Motion for condonation of delay in filing the
restoration application be dismissed with compensatory cost.
9. Perused Roznama dated 16.2.2019 it is mentioned therein
that both the parties and their counsel absent. Issues framed on
25.7.2018. Plaintiff availed more than three chances to lead evidence.
No evidence adduced. No further steps taken. Therefore, the suit
stands dismissed for want of prosecution.
10. According to the applicant he was present before the Court
on 16.2.2019. According to the defendant the contention of the
applicant cannot accepted because nothing is mentioned in the
Roznama dated 16.2.2019 that the applicant was present before the
Court. I have gone through the affidavit in support of the Notice of
Motion. It is specifically mentioned therein that the applicant has
received final board resolution through email on 12.03.2019 therefore,
I am of the opinion that if for a moment it is presumed that applicant
was present before the Court on 16.2.2019, but on that day his presence
on behalf of plaintiff could not have taken on record because he was not
authorized at that time to represent the plaintiff.
11. The plaintiff is company. Earlier advocate of the plaintiff
left the matter giving no objection. Earlier person namely Mr. Sagar
Ugale who was pursuing the matter, left plaintiff's company in the
month of October2018 without informing about the matter to the
plaintiff's company.
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12. Perused Order 9 Rule 3 of the CPC. 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.
13. 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 the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, 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.
14. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
15. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
16. The applicant has received final board resolution through
email on 12.3.2019. Considering the contention raised in the Notice of
Motion and the affidavit in support of Notice of Motion, I am of the
opinion that the applicant has made out sufficient cause to condone the
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delay. Hence delay can be condoned. Therefore, I record my findings
to point No.1 in the affirmative and point No.2 the Notice of Motion is
allowed as per final order. Hence following order:
ORDER
Notice of Motion No.1464 of 2019 is hereby allowed as under:
1. Delay in filing application for restoration of suit is hereby
condoned.
2. No order as to costs.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 16/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 16/12/2019.
Transcribed on : 16/12/2019.
Signed on : 23/12/2019.
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.01.2020 at 12.44 p.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 16.12.2019
Judgment/order signed by P.O. on 23.12.2019
Judgment/order uploaded on 01.01.2020
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