Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
1515 of 2019 in Suit No. 462 of 2016
MHCC010040042019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1515 OF 2019.
IN
S C Suit No.462 of 2018.
MYNK 1906 Industries India Ltd. ...Applicant.
In the matter of
MYNK 1906 Industries India Ltd. … Plaintiff
V/s.
1.The Mumbai Port Trust and Anr. ...Defendants
Appearances :
Adv. Giriraj a/w Shivani Bhate a/w Sonal Doshi and Co., for plaintiff.
Adv. Ravi Irle a/w Santosh Jadhav for defendant No.1.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 18/07/2022
ORDER
Plaintiff has taken out this Notice of Motion with prayer to
recall the order dated 25.01.2019 passed in the suit whereby the suit is
dismissed against the defendant No. 2 for failure of plaintiff to take
steps.
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Order in Notice of Motion No.
1515 of 2019 in Suit No. 462 of 2016
2. Plaintiff contends that due to inadvertence, the plaintiff
was unable to give instructions for filing application for service of writ
of summons upon the defendant No. 2. Defendant No. 1 has sold goods
to the auction purchaser, i.e. defendant No.2 and goods are delivered to
defendant No.2 on 26.02.2016.
3. It is further contended that on 25.01.2019, the advocate on
record for the plaintiff was held up in the Hon'ble Bombay High Court.
Therefore, he could not attend the Court. Authorized signatory of the
plaintiff was also in travelling. Therefore, the order of dismissing the
suit against the defendant No.2 was passed. If the order is not set aside,
the plaintiff will suffer irreparable loss and injury. Ultimately, it is
prayed that the order dated 25.01.2019 be recalled and the plaintiff be
allowed to file application under Order 5 Rule 20 of the Code of Civil
Procedure, 1908 (In short 'CPC') for substituted service of writ of
summons upon the defendant No.2
4. Advocate for defendant No.1 made the statement that he
does not want to file reply to the Notice of Motion. Defendant No.2 is
served with Notice of Motion by publication. No appearance is filed by
defendant No.2.
5. Heard Ld. advocate for the plaintiff. Perused the record.
It reveals that defendant No.2 was added in the suit vide order dated
30.11.2016 in Chamber Summons 1395 of 2016. Since 2017, the matter
was pending for taking steps against the defendant No.2. On
12.07.2017, plaintiff tendered service affidavit stating that the packet is
returned with remark ' Not Known'. As the service was not complete,
matter was again kept under the caption of steps against defendant
No.2. Since then, plaintiff failed to take any steps against the defendant
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Order in Notice of Motion No.
1515 of 2019 in Suit No. 462 of 2016
No. 2 and ultimately on 25.01.2019, the suit is dismissed against
defendant No. 2 for want of steps.
6. Ld. Advocate for plaintiff argued that noting dated
25.01.2019 shows that the plaintiff was absent. Therefore, the order is
passed by the Court under Order 9 Rule 3 of the CPC. As per Rule 4 of
the CPC, the plaintiff can apply for setting aside the order and to restore
the suit against defendant No.2. He relied upon the Judgment of the
Hon'ble Bombay High Court in Harsukh B. Gohel V/s. Vinod Kumar
Bindish and others, 2014 SCC OnLine Bom 152, to submit that the
notice of motion is maintainable for restoration of suit.
7. I am not inclined to accept the above submission of learned
counsel for the plaintiff for the reason that though in the noting dated
25.01.2019, absence of plaintiff is recorded, the suit is dismissed not
because of the absence of the plaintiff, but for the reason of failure to
take steps against defendant No.2 by the plaintiff. Therefore, the order
is passed under Order 9 Rule 5 of CPC and not under Order 9 Rule 3 of
the CPC. The provision under Rule 4 is applicable only in case the suit
is dismissed under Order 9 Rule 2 or 3 of CPC. It is pertinent to note
that the whole suit is not dismissed. The suit against defendant No.2 is
only dismissed. Therefore, it cannot be said that the order is passed
under order 9 of Rule 2 or 3 of CPC.
8. So far as any order passed under Order 9 Rule 5 of CPC is
concerned, only remedy available to the plaintiff is to bring fresh suit,
subject to law of limitation. Therefore, the remedy to file restoration
application or to seek setting aside the dismissal order is not provided,
in consequence to the order of dismissal under Rule 5 of Order 9 of
CPC. The learned counsel for the plaintiff failed to cite any precedent
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Order in Notice of Motion No.
1515 of 2019 in Suit No. 462 of 2016
which provides that order passed under Rule 5 Order 9 of the CPC can
be set aside by the Court and suit can be restored. The facts of the
present case are altogether different. Therefore, with due respect, the
above authority is not helpful to the plaintiff.
9. Ld. Advocate for the plaintiff relied upon the judgment of
the Hon’ble Orissa High Court in Prahlad Pursty Vs. Sheokh Abdul
Rahman, 1966 SCC OnLine Ori 9, in support of his submissions. It is
held therein that service of notice on the defendant in a proceeding
under Order 9 Rule 4 of CPC is not mandatory. The said issue is not
involved in the present case. It does not deal with the order passed
under Order 9 Rule 5 of CPc, thus the same is not helpful to the
plaintiff.
10. In these circumstances, the prayer in the Notice of Motion
cannot be allowed. The Notice of Motion thus, deserves to be
dismissed. In the result, following order is passed :
ORDER
1. Notice of Motion No.1515 of 2019 is dismissed with costs.
2. Notice of Motion No.1515 of 2019 is disposed of accordingly.
(SHRI S. B. PAWAR )
Judge
Dt.:18/07/2022 City Civil Court, Gr.Mumbai
Declared on : 18.07.2022
Dictated on : 18.07.2022
Transcribed on : 22.07.2022
Checked & Signed on :
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Order in Notice of Motion No.
1515 of 2019 in Suit No. 462 of 2016
ERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.07.2022 at 11.15 a.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.07.2022
Order signed by P.O. on 18.07.2022
order uploaded on 22.07.2022
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