Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1391-18 in NM 2369 of 2016
in L.C. Suit No.2093 of 2015
1 Date : 22.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1391 OF 2018
IN
NOTICE OF MOTION NO. 2369 OF 2016
IN
L.C.SUIT NO.2093 OF 2015
(CNR NO.MHCC010043892018)
Mr. Gururaa Krishna Sheth ..Plaintiff
Versus
Mr. Praful Gandhi & Ors. .. Defendants
Appearances :
Adv.E.R. Naik for plaintiff present.
Adv.M.A.Shah for defendant no.3 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 22.08.2019
1. The defendant no. 3 has filed instant Notice of Motion for
setting aside order dated 03.03.2018 whereby the Notice of
Motion No. 2369 of 2016 was dismissed for want of prosecution.
2. It is contended by the defendant no. 3 that they have
received suit summons on 11.09.2015. Thereafter, on 20.09.2015,
the society passed Resolution whereby resolving that the only of
members of the society will be allowed to park their vehicle in the
allotted space. In the meantime the plaintiff had approached the
defendants society through Mediator to settle the aforesaid
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dispute. Therefore, the settlement proposal was under
consideration. The aforesaid settlement proposal was required
consent of the Managing Committee. The Managing Committee
after discussing the plaintiff terms could not accept the terms and
conditions of the plaintiff. In the meantime, on 29.11.2015, the
Court passed “No W.S.” order against defendant no. 3. Therefore,
in order to set aside “No W.S.” order, the defendant no. 3 filed
Notice of Motion No. 2363 of 2016 for condonation of delay in
filing Written Statement and permitting defendant no 3 to file
Written Statement on record.
3. It is contended by the defendant no. 3 that his lawyer since
beginning was attending the matter. The plaintiff also filed Notice
of Motion No. 182 of 2016 for interim relief. Both the aforesaid
Notice of Motions were kept together for hearing. Both Notice of
Motions were fixed on 02.03.2018. However, due to the 'Holi
Festival' declared on 02.03.2018, the lawyer of defendant no. 3
could not attend the Court. The matter was listed on 03.03.2018
i.e. next following day. However, his lawyer was not aware about
the aforesaid matter and due to the busy schedule of the lawyer he
suddenly skip to attend the Court and therefore, the Notice of
Motion No. 2369 of 2016 was dismissed in default.
4. It is further contended by the defendant no. 3 that they have
very good case on merit as well as on law. In the event, the
aforesaid Notice of Motion is not restored the great prejudice
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in L.C. Suit No.2093 of 2015
3 Date : 22.08.2019
would be caused to the defendant no. 3 to defend the suit.
5. Per contra plaintiff opposed the Notice of Motion by filing his
say. It is contended by the plaintiff that Mr. Deepak Desai is not
authorized to file the present Notice of Motion. The defendant no.
3 failed to give cogent and sufficient reasons to restore the Notice
of Motion No. 2369 of 2016.
6. It is further contended by the plaintiff that there is a delay of
191 days in filing the Notice of Motion No. 2369 of 2016 which
has not been explained by the defendant no. 3. It is contended by
the plaintiff that there is no substance in the Notice of Motion filed
by the defendant no. 3 and same needs to be rejected with cost.
7. Heard both the sides. Perused Notice of Motion and reply.
The reasons assigned by the defendant no. 3 is that on 02.03.2018,
there was a holiday declared due to 'Holi Festival' and the matter
was kept on next date. However, his lawyer skipped to attend the
present matter and therefore, Notice of Motion dismissed for want
of prosecution.
8. It appears from the record that defendant no. 3 immediately
on 07.03.2018 i.e. within 4 days of passing of impugned order
filed instant Notice of Motion. In my view, the reasons assigned by
the defendant no. 3 are cogent and sufficient to consider the
restoration of Notice of Motion No. 2369 of 2016. The conduct of
defendant no. 3 shows that they acted in due diligence and there is
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in L.C. Suit No.2093 of 2015
4 Date : 22.08.2019
no intention on the part of the defendant no. 3 to delay the
proceeding. Hence, in my view, the Notice of Motion needs to be
allowed. Thus, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 1391 of 2018 is made absolute in terms
of prayer clause (a) and (b) and Notice of Motion No. 2369
of 2016 is hereby restored.
2. Notice of Motion No. 1391 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 22.08.2019 Greater Mumbai
Dictated on : 22.08.2019
Typed on : 22.08.2019
Draft Submitted on : 22.08.2019
Checked on : 23.08.2019
Signed on : 23.08.2019
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NM 1391-18 in NM 2369 of 2016
in L.C. Suit No.2093 of 2015
5 Date : 22.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23/08/2019 at 3.00 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.7)
Date of Pronouncement of
JUDGMENT/ ORDER
22/08/2019
JUDGMENT/ORDER signed by P.O.
on
23/08/2019
JUDGMENT/ORDER uploaded on 23/08/2019
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