Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1469 OF 2019
IN
NOTICE OF MOTION NO.2251 OF 2018
EXECUTION APPLICATION NO.423 OF 2015
IN
S.C. SUIT NO.8910 OF 1992
(HIGH COURT SUIT NO.2571 OF 1992)
The Board of Trustees of the Port of Mumbai ] … Plaintiffs
V/s.
1. M/s. Indian Wollen Mills ]
2. M/s. Intermodel Transport Trading ]
System Pvt. Ltd. ] ... Defendants
Appearances :
Ms. Vimal Khandare, Ld. Adv. for plaintiffs.
Mr. Sunil More, Ld. Adv. for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 25th November, 2019
ORAL ORDER
1. Plaintiff filed this Notice of Motion for setting aside the
order dated 14.9.2018 passed in Notice of Motion No.2251 of 2018
MHCC01-003888-2019
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proceeding without reply of plaintiff and for condonation of delay in
filing this Notice of Motion.
2. Perused application and say.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing the present
Notice of Motion can be condoned?
In the affirmative.
2. Whether the order dated 14.9.2018
passed in Notice of Motion No.2251 of
2018 proceeding without reply of
plaintiff can be set aside ?
In the affirmative.
3. What Order ? As per final order.
REASONS
As to point Nos.1 to 3.
4. Heard both Learned advocates.
5. It is the contention of the plaintiff that Notice of Motion
No.2251 of 2018 was listed on Board on 14.9.2018. On that day when
none appeared on behalf of plaintiff, said order came to be passed. At
the relevant time the concerned Advocate Miss Khushboo Agarwal, who
was looking after the matter has left the plaintiff Advocate's
Organization. Therefore, through oversight, track of the said matter
could not be kept. Advocate Ms. Vimal Khandare appeared before this
Court on 14.2.2019 and tried to tender affidavit in reply to the said
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Notice of Motion No.2251 of 2018 but same was not taken on record
because of the said order dated 14.9.2018. Therefore, the said order be
set aside.
6. The Learned Advocate appearing for plaintiff submitted
that reply to the Notice of Motion No.2251 of 2018 is affirmed on
13.2.2019. Therefore there is no inordinate delay. There is no
intention not to file reply as early as possible.
7. On the contrary, it is contention of the defendant No.2 that
there is no documentary proof to show that when the earlier Advocate
left the plaintiff's Advocate's Organization. All the other contentions
are denied.
8. Perused Notice of Motion No.2251 of 2018. It is filed to
stay to the issuance of Warrant of Attachment taken out by the plaintiff
in the said Execution Application. Perused Order dated 14.9.2018. It is
mentioned therein that none appeared for plaintiffs, hence Notice of
Motion No.2251 of 2018 proceeded without reply of plaintiff.
Therefore, considering the reasons mentioned in the instant Notice of
Motion and considering nature of Notice of Motion No.2251 of 2018, I
am of the opinion that delay can be condoned and the said order dated
14.9.2018 can be set aside to decide the Notice of Motion No.2251 of
2018 on merit. Hence, I record my findings on point Nos.1 and 2 in the
affirmative and point No.3 the Notice of Motion is allowed as per final
order. Hence following order:
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ORDER
Notice of Motion No.1469 of 2019 is allowed as under:
1. Delay in filing the Notice of Motion No.1469/19 is condoned.
2. Order of proceeding without reply of the plaintiff passed on
14.09.2018 in NM No.2251/18 is hereby set aside.
3. Cost in Main cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 25/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 25/11/2019.
Transcribed on : 26/11/2019.
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 11.56 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 25.11.19
Judgment/order signed by P.O. on 26.11.19
Judgment/order uploaded on 28.11.19
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