Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.1534/19 in Session Case 2767/15 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1534 OF 2019
IN
S.C. NO. 2767 OF 2015
(CNR.NO.MHCC010086622015)
1 Faiyaz Ibrahim Kondkari, )
Aged : Adult, Occu. Business )
R/o Guru Mauli CHS, Flat No. )
404, Building No. A8, Kokri )
Agar, Mhada Colony, Wadala )
Truck Terminals, Mumbai 400 037 )
2. Noorbi Ibrahim Kondkari, )
Aged : Adult, R/o. Guru Mauli CHS, )
Flat No. 404, Building No. A8 )
Kokari Agar, Mhada Colony, )
Wadala Truck Terminals, )
Mumbai 400 037 ).... Applicants (Defendant
2A & 2B)
IN THE MATTER BETWEEN
1. Hamid Ismail Malim )
Aged About 65 years, Adult, )
Indian Inhabitant, R/O At post )
Vilawade, Taluka : Lanja, )
District : Ratnagiri )….Plaintiff
VERSUS
1. Mohsin Abdul Aziz Shaikh, )
Aged : Adult, Residing At Room )
No. 5, Chawl No. A 30 & Room )
No. 3, Chawl No. E 19, New )
Transit Camp, Kokri Agar, )
Wadala Truck Terminal, )
Mumbai 400 037. )
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N.M.1534/19 in Session Case 2767/15 2
2A. Noorbi Ibrahim Kondkari, )
Aged : Adult )
2B. Faiyaz Ibrahim Kondkari, )
Aged : Adult )
Both Residing At Guru Mauli )
CHS, Flat No. 404, Building No. )
A 8, Kokri Agar, MHADA Colony, )
Wadala Truck Terminals, )
Mumbai 400 037. )
3. Ibrahim Baba Khan, )
Aged : Adult, Residing at Room )
No. 5, Chawl No. E 19, New, )
Transi Camp, Kokri Agar, )
Wadala Truck Terminals, )
Mumbai 400 037. ).... Defendants
Appearances:
Mr. S.J.Chawrasia, Advocate for Plaintiff present.
Mr. Makarand Kale, Advocate for Defendant
Nos. 2(A) and 2(B) present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Addl. Judge
CR No. : 32
Dated : 04th June, 2019.
: ORDER :
1. The defendant 2A and 2 B has filed the Notice of Motion
for condonation of delay of 191 days in taking out the Notice of Motion.
It is contended by the defendant that they are not much educated and
are unaware about the court proceedings. Much of the considerable
time was loss for arranging funds to engage lawyer to represent in the
suit. Hence, delay of 191 days has been caused. This court has passed
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N.M.1534/19 in Session Case 2767/15 3
Exparte order against defendants. Due to the aforesaid reason, the
defendants could not file written statement in time. Hence, the
defendant prayed for setting aside Exparte order against them to
condone the delay of 191 days and allow them to file their written
statement.
2. Per Contra, plaintiff appeared and resisted the application
by filing say on the ground that, the present dispute fall under
Commercial Court Act. As per Commercial Court Act, the delay in filing
written statement could not be condoned. In support of his submission,
he has relied on the Judgment of Hon'ble Apex Court in the case of
M/s. SCG Contracts India Pvt. Ltd. V/s. K.S. Chamankar
Infrastructure Pvt. Ltd. & Ors.
3. It is further contended by the plaintiff that, on 19.04.2018,
the defendants appeared and sought time to file written statement.
However, after 18.06.2018, none appeared for the defendants and
therefore, the Court proceeded ExParte against them. The defendants
failed to assign any cogent and sufficient reason or exceptional
circumstances to condone delay and permit them to file written
statement.
4. In counter to the argument of plaintiff, defendant
contended that, the suit is not filed by the plaintiff under the
Commercial Court Act. The alleged transactions do not fall under
definition of Commercial dispute. Hence, the aforesaid limitation is
not applicable in the present case. It is further contended by the
defendant that, even if it is treated that the transaction comes under
definition of Commercial dispute then as per judgment of Hon'ble
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N.M.1534/19 in Session Case 2767/15 4
Bombay High Court in the case of Reliance General Insurance
Company Ltd. V/s. Colonial Life Insurance Company (Trinidad) Ltd.,
the Commercial Court Act is not retrospective effect, hence, defendant
contended that the Notice of Motion be allowed in the interest of
justice.
5. Heard both the sides. Perused application and record. The
allegation of the plaintiff against defendants are that, he was duped by
the defendants while purchasing residential room. Hence, in my view,
as per Section 2(C) of the Commercial Court Act, 2015, the present
dispute do not fall under the Commercial dispute, so as to fall under the
ambit of the Commercial Court Act, 2015.
6. The reasons assigned by the defendant is that, they are
illiterate and poor, therefore, they could not file written statement in
time. In my view, none of the party would purposefully cause delay to
prejudice their own interest. In my view, if the defendant is not
permitted to enter in the suit, their valuable right to defend would be
frustrated. The inconvenience caused to the plaintiff can be
compensated by awarding appropriate cost. Thus, I proceed to pass the
following order.
: ORDER :
1. The delay of 191 days is hereby condoned on condition to
payment of Rs. 2,000/ as cost.
2. The Exparte Order against defendant No. 2A and 2B is hereby set
aside.
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N.M.1534/19 in Session Case 2767/15 5
3. The defendant nos. 2A and 2B are permitted to file their written
statement strictly on or before 21.06.2019.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 04.06.2019 Greater Mumbai
Dictated on : 04.06.2019
Transcribed on : 06.06.2019
Draft submitted on : 06.06.2019
Checked on : 07.06.2019
Signed on : 10.06.2019
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N.M.1534/19 in Session Case 2767/15 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/06/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
04/06/2019
JUDGMENT/ORDER signed by
P.O. on
10/06/2019
JUDGMENT/ORDER uploaded
on
10/06/2019
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