Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1371/2018
in Ch-s.630-18 in SC 9960-99
MHCC010043262018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.1371/2018
CNR NO.MHCC010043262018
IN
CHAMBER SUMMONS NO.630/18
IN
SUIT NO. 9960/1999
1(a) Devendra Gaglani & Ors ...Applicants
1. Pravin Ratilal Gaglani ...Plaintiff.
Versus
1. Investors Estates and Finance Private
Limited Company and Ors. ...Defendants.
Adv.Kunal Kumbhat for the Applicant/ plaintiff.
None for the defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.14)
DATE : 3rd DAY OF MARCH, 2021
ORAL ORDER
Perused the notice of motion which is supported by an
affidavit being executed by applicant no.1(d)Nitin Gaglani. Heard
advocate for the plaintiff. The roznama dated 28/02/2020 i.e. prior
to the lock down reflects that this notice of motion was duly served
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2 N/M 1371/2018
in Ch-s.630-18 in SC 9960-99
upon the defendants but they failed to file reply. Heard learned
advocate Shri Kunal Kumbhat. Perused the complete record and the
previous roznamas. The main suit is very old one and the original
plaintiff therein even has filed the affidavit of evidence along with
documents and the defendant chooses to remained absent and the
matter was infact reached up to the final argument. Meanwhile, on
25/09/2017 the advocate for the plaintiff has submitted that the
plaintiff has expired and sought time to take steps. The roznama
dated 24/11/2017 reflects that as legal representative has not been
brought on record and period of 90 days after the death of plaintiff
being over, the suit was abated. The plaintiff has taken out separate
chambers summons for setting aside that abatement order and this
notice of motion is restricted only for the purpose of condoning the
delay of about 185 days in filing chamber summons.
2. The affidavit in support of the notice of motion shows
that the original plaintiff has expired on 6th July, 2017 at Harefield
hospital , U.K. and the death certificate is placed on record as per
ExhA of the notice of motion. The applicant became aware of the
present suit when he has opened email of his deceased father and
thus has contacted the lawyer on 27/9/2017 which is clear from the
documents Exhibit 'C' of the affidavit . In my considered opinion, the
contents of paras no.3 to 11 are sufficient to conclude as satisfactory
grounds are pleaded for condoning the delay as the plaintiff has
expired out of India and applicant after seeking instructions, has filed
the present application. In my considered opinion, the delay appears
to be unintentional and without any deliberate mistake or fault on
part of the applicant. The right to sue survives in favour of the
applicant and therefore considering the fact that in the original suit
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in Ch-s.630-18 in SC 9960-99
itself has reached up to the stage of final argument, the delay of 185
days can very well be condoned, considering the affidavit of the
applicant which is being executed before the Assistant Consular
Officer, High Commission of India, London. Furthermore, no
prejudice is going cause to the defendants because they will certainly
get an opportunity to contest the suit on merits. Hence as per section
5 of the limitation Act, the delay in filing chamber summons no.
630/18 is condoned and I pass the following order:
ORDER
1. The Notice of Motion No. 1371/18 is allowed and made
absolute in terms of prayer clause (a) and (c).
2. Notice of Motion no. 1371/18 is disposed off
accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.03.03.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on :03.03.2021
Transcribed on :04.03.2021
Signed on :
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in Ch-s.630-18 in SC 9960-99
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:04.03.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: pm
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.14)
Date of Pronouncement of JUDGEMENT/ORDER 03.03.2021
JUDGMENT/ORDER signed by P.O. on 04.03.2021
JUDGEMENT/ORDER uploaded on 04.03.2021
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