Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1666/19
in Suit no. 512-13
MHCC010045702019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.1666/2019
CNR NO.MHCC010045702019
IN
SUM.SUIT NO.512/2013
Mukesh Champalal Munot
S/o. Sh. Champalal Munot
Prop. Of Kunj International
4/2, Alankar Cinema Building,
S.V.P. Road, Mumbai – 400004 ...Plaintiff.
Versus
Mohan Rail Components Pvt. Ltd.
Opp. Rail Coach Factory
Dhudhiankalan, Hussainpur,
Kapurthala, Punjab ...Defendant.
Adv. K.S.Tripathi for the plaintiff.
Adv. Shushma Pandey for defendant
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.14)
DATE : 23rd DAY OF MARCH, 2021
ORAL ORDER
Perused the notice of motion which is supported by an
affidavit being executed by Amandeep Singh S/o Sh.Jaspal Singh who
is the director of the defendant's company. This notice of motion is
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taken out by the defendant for setting aside the order dated
27/3/2019 passed by my learned predecessor. It would be apposite
at this stage to reproduce the order dated 27/3/2019 which reads as
under: “Defendant witness is not present for verification of
affidavit. Hence, affidavit of defendant is discarded and closed
evidence of defendant. Hence, adjd.to 09/04/2019 for arguments.”
This notice of motion is replied by the plaintiff by filing an affidavit
being executed by Mukesh Munot. I have heard learned advocate
Shri Tripathi for the plaintiff and advocate Sushama Pandey for the
defendant.
2. In the case in hand, the suit is with regard to the sales of
goods act. The plaintiff has already led his evidence and infact on
behalf of the defendant the affidavit in lieu of examination in chief of
DW 1 Amandeep Singh is placed on record. By virtue of order dated
27/3/2019 as the defendant witness was not present and therefore
the evidence of defendant was closed, as is clear from aforesaid
order.
3. I have gone through the record and the evidence of the
plaintiff. It is a matter of record that previously conditional leave to
defend was granted to the defendant and the said condition has been
complied with. The nature of this suit is for recovery of an amount.
The contents of the affidavit states that the defendant is a resident of
Kapurthala (Punjab). Considering this, as witness is residing at a
long distance, I have gone through the issues which are framed at
Exh.11. The issues no.6, 7 and 11 if perused the burden is casted
upon the defendant to prove the said fact which is being pleaded by
way of written statement. It is pleaded that the defendant has acted
upon the transaction through the agent of the plaintiff. Considering
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in Suit no. 512-13
the pleadings on record as well as issues which are framed and also
that the affidavit is placed on record but only the witness was absent
and therefore the evidence was closed. Now by virtue of affidavit in
support of this notice of motion it is submitted that the witness is
ready to come and depose before the Court. Nonetheless, it is also
necessary to mention that one medical certificate is placed on record
showing that there was genuine medical reasons for the witness for
not attending the Court. I am satisfied for the reasons mentioned in
the affidavit in support of notice of motion along with the medical
certificate for nonabsence of the witness before the Court. As this is
a money recovery suit and as previously conditional leave was
granted to defend, for giving fair opportunity to the defendant to
contest the suit on merit and in the interest of justice one opportunity
needs to be granted to defendant to led the evidence. Hence, for fair
trial and proper adjudication of the case and as the advocate for the
plaintiff has submitted that on next date the witness shall attend the
Court, therefore, I pass the following order.
ORDER
1. Notice of Motion No. 1666/19 is allowed and made
absolute in terms of prayer clause (a) to (c) with direction that
on next date the so called defendant's witness Amandeep
Singh shall attend the Court.
2. Notice of Motion is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.23.03.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on :23.03.2021
Transcribed on :23.03.2021
Signed on : 23.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 24.03.2021 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 23.03.2021
JUDGMENT/ORDER signed by P.O. on 23.03.2021
JUDGEMENT/ORDER uploaded on 24.03.2021
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