Final Order 1

Order Details: Notice of Motion
Pdf Text: NM NO.123018 1 IN SUM. SUIT NO.308911
CNR : MHCC010039282018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1230 OF 2018
IN
SUMMARY SUIT NO.3089 OF 2011
Vodafone Essar Limited,
A company incorporated under the
Companies Act 1 of 1956 and having
its registered office situated at
Peninsula Corporate Park, Ganpatrao
Kadam Marg, Lower Parel,
Mumbai 400 0001 and
having its Mumbai Circle office
situate at 2nd floor, Skyline Icon,
86/92, Andheri Kurla Road, Marol
Naka, Andheri East,
Mumbai400059. .. Plaintiff
Versus
Enercon (India) Limited
A company incorporated under the
Companies Act of 1956 and having its
Registered office and Plant situate
at Plot No.33, Daman Patalia Road,
Bhimpore, Daman 396210 and
having its corporate office situate at
Enercon Tower, A9, Veera Industrial
Estate, Veera Desai Road,
Andheri West, Mumbai 400 053. .. Defendant
Appearances:
Mr. Siddharth Rajamohan h/f Advocate Mr. Punit Anand,
Advocate for plaintiff.
Ms. Shama Mulla for defendant.
CORAM : SMT. S.S. NAGUR,
ADHOC JUDGE &
ASST. SESSIONS
JUDGE,
(C.R.NO.13)
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NM NO.123018 2 IN SUM. SUIT NO.308911
DATE : 20/12/2018
ORDER
1) This Notice of Motion is filed by defendant to set
aside the no cross order passed in roznama dated 24/1/18. The
Notice of Motion is supported by affidavit of Govind Tahil,
Head(Logistics, Administration & Security) of defendant
company, wherein he has contended that the suit was fixed for
cross examination of the plaintiff. Defendants have never
sought adjournment of any date. The advocate for defendant on
24/1/18 prayed that adjournment which was rejected.
Therefore prayed to set aside the order.
2) Advocate Shri. Rajamohan for plaintiff is present.
The reply is not filed by plaintiff. He submitted his oral
arguments be treated as reply to the Notice of Motion.
3) Heard advocate Ms. Shama Mulla for defendant
and Shri. Siddharth for plaintiff. Perused application and I have
also gone through the record.
4) Advocate Mr. Rajamohan argued that though the
advocate for defendant Ms. Shama Mulla was present when the
matter was called out on 24/1/18 for cross examination, she
failed to cross examine witness. Therefore, no cross order was
passed. The opportunity was given to the defendant but they
failed to cross examine the witness. Hence, strongly objected to
set aside the no cross order.
5) On the other hand, Advocate Ms. Shama Mulla
argued that the defendant could not cross examine the witness
on the said date and sought for adjournment. The defendant
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NM NO.123018 3 IN SUM. SUIT NO.308911
desires to cross examine the witness. Hence, prayed to allow
the application.
6) The suit is for recovery of money of Rs.
18,97,494.84/ from the defendant. Issues are framed on
28/1/13 at Exh.5. Considering the nature of dispute between
the parties the defendant desires to cross examine the witness.
On perusal of affidavit filed by the plaintiff though it is affirmed
but not verified as read and recorded in evidence. Unless the
affidavit is read and recorded in evidence, same cannot be
considered as evidence of plaintiff's witness. Hence, no cross
order needs to be set aside. No prejudice will cause to the
plaintiff. On the contrary, the plaintiff will get the opportunity
to adduce the evidence and get his affidavit read and recorded
in evidence. Hence, pass following order:
O R D E R
a) Notice of Motion No.1230/18 is allowed.
b) No cross order dated 24/1/18 is set aside.
c) The direction is given to the witness of the plaintiff
Mr. Shailesh Bharatdwaj to remain present on next
date for verifying contents of the affidavit lead in
evidence.
d) Defendant should cross examine the witness on
next date.
e) No order as to costs.
( S.S.NAGUR )
AdHoc & Asst.
Sessions Judge
Dt.: 20/12/2018 City Civil Court,
Gr. Mumbai
Dictated on : 20/12/2018
Transcribed on : 21/12/2018
Signed on : 21/12/2018
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NM NO.123018 4 IN SUM. SUIT NO.308911
(As per office circular no.25 of 2016 and 20 of 2016, dated 20.12.2016 issued by
IC Registrar)
“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
DATE & TIME OF UPLOADING :21.12.2018 & 3.27 p.m.
Name of Steno with Post. : Mrs. Shobha Ashok Shekade,
Stenographer (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur (CR no. 13)
Date of pronouncement of Judgment/order : 20.12.2018
Judgment /order signed by the P.O. on : 21.12.2018
Judgment /order uploaded on : 21.12.2018
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