Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1371-2020 in Exe Appn 94-19 1 Date : 27.09.2021
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1371 OF 2020
IN
EXECUTION APPLICATION NO. 94 OF 2019
IN
S.C. SUIT NO.1327 OF 2017
(CNR NO.MHCC01MHCC010042412020 )
Dr. Pankaj Rajaram Bandarkar
Adult Indian Inhabitant Occ : Service,
residing at 7/10, Aarya Nagar,
Opp. Tulsiwadi, Mumbai 400 034
]
]
]
]
]
] ..... Judgment Decree
holder/ Original Defendant
Versus
Pramod Pandurang Pisal
Proprietor of M/s. Unity Land
Consultancy Proprietary firm office at
LG63, 5/16 C, P C Pisal Sons, Opp.
Kamgar Nagar, S.G.Barve Marg, Kurla
(East), Mumbai 400 024.
]
]
]
]
]
]
]
]
] ..... Judgment Debtor/ Plaintiff
Appearances :
Ld.Adv. Rajesh S. Patil a/w Kafil A. Khan for decreeholder
Ld. Adv. Swapnil Bangur a/w Adv. Pal for judgment debtor
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 27/09/2021
ORDER
1. The judgment debtor/original plaintiff filed instant
-- 1 of 8 --
NM 1371-2020 in Exe Appn 94-19 2 Date : 27.09.2021
motion for setting aside order dated 10/08/2020, passed by my
predecessor by which court issued show cause notice for warrant
of attachment and further directed judgment debtor/ original
plaintiff not to create three party interest in immovable properties
sought to be attached in the proceeding.
2. It is contended by the judgment debtor/original
plaintiff that he has filed the suit against decree holder for
injunction. The aforesaid suit came to be disposed off vide Consent
Terms dated 18/06/2018, by which he was liable to pay
Rs. 2,50,00,000/ (Rupees Two Crore Fifty Lakh only) to the
decree holder within period of nine months from the date of
Consent terms. Due to financial crises, he failed to pay the amount
within stipulated period. Therefore, clause 7 of the said consent
terms was modified and he issued several cheques to the decree
holder. After filing aforesaid Consent terms due to pandemic he
was in financial crunch. He requested the decree holder for not to
send the cheques for realisation. In spite of that, the decree holder
deposited the cheque for realization.
3. It is further contended that, the judgment
debtor/original plaintiff is willing to pay but due his poor financial
condition he is unable to pay. It is further contended that,
properties which the decree holder seeking for attachment are not
belonging to him. In spite of that, decree holder filed motion for
attachment of warrant.
-- 2 of 8 --
NM 1371-2020 in Exe Appn 94-19 3 Date : 27.09.2021
4. It is contended that, he was served with aforesaid
motion but on 10/08/2020 his advocate was stuck into traffic.
Therefore, he reached at 11.45 a.m. but before that, advocate for
decree holder argued the matter and the order was passed without
giving opportunity to him. Therefore, the judgment
debtor/original plaintiff contended that, the order dated
10/08/2020 is exparty and some needs to be recall.
5. The motion is opposed by the decree holder by filing
say. The decree holder contended that the motion is not
maintainable in view of Order 21 Rule 106 of Code of Civil
Procedure, 1973. The motion filed after 30 days from the date of
knowledge of the order. Hence, motion is time barred and same
needs to be dismissed with cost.
6. It is further contended that, the decree holder initially
moved by this court on 05/08/2020 with advance intimation with
specific to the judgment debtor/original plaintiff. On that day
judgment debtor/original plaintiff remained absent. Therefore, the
matter was adjourned to 10/03/2020. The decree holder again
served the notice of scheduled hearing upon the judgment
debtor/original plaintiff. Inspite of that, he failed to appear. Thus,
it is contended that, the judgment debtor/original plaintiff was
deliberately avoided to remain present in the court. Hence, he
prayed for rejection of the motion.
7. The contention of the decree holder was again denied
-- 3 of 8 --
NM 1371-2020 in Exe Appn 94-19 4 Date : 27.09.2021
by the judgment debtor/original plaintiff by filing rejoinder to the
reply.
8. I have heard both the sides. Perused motion, reply and
rejoinder. As per contention of judgment debtor/original plaintiff
that order dated 10/08/2020 is expartee order. It is contended
that, on that day his advocate was stuck in the traffic and
therefore, he reached in the court at 10.45 a.m. As per Order 21
Rule 106 contemplate limitation of 30 days for filing of application
for setting aside expartee order. As per roznama it appears that on
10/08/2020 the advocate of judgment debtor appeared later on.
The present motion is registered on 28/09/2020. Therefore, it
appears to me that, the motion is time barred. However, there is
no prayer to condone the delay and no reasons assigned for the
delay.
9. It also appears from the record that, on 04/08/2020
and 07/08/2020 the judgment debtor/original plaintiff was duly
served with notice of motion. It means the judgment
debtor/original plaintiff was having knowledge of the proceedings.
Therefore, in view of above discussion I am of the view that
judgment debtor/original plaintiff did not assign sufficient reasons
to set aside order dated 10/08/2020 and notice of motion deserves
-- 4 of 8 --
NM 1371-2020 in Exe Appn 94-19 5 Date : 27.09.2021
to be dismissed. Thus, I proceed the following order :
ORDER
1 Notice of motion No. 1371 of 2020 is dismissed with cost.
2. Notice of motion No. 1371 of 2020 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 27.09.2021 Greater Bombay.
Dictated on : 27.09.2021
Transcribed on : 28.09.2021
Checked on : 30.09.2021
Signed on : 30.09.2021
-- 5 of 8 --
NM 1371-2020 in Exe Appn 94-19 6 Date : 27.09.2021
////
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23.09.2021at 3.10 p.m. (Mrs. S.R.Mejari)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of
JUDGMENT/ ORDER
22.09.2021
JUDGMENT/ORDER signed by P.O.
on
23.09.2021
JUDGMENT/ORDER uploaded on 23.09.2021
-- 6 of 8 --
NM 1371-2020 in Exe Appn 94-19 7 Date : 27.09.2021
-- 7 of 8 --
NM 1371-2020 in Exe Appn 94-19 8 Date : 27.09.2021
-- 8 of 8 --