Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No. 1492 of 2018
MHCC010046772018
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1492 of 2018
IN
S. C. SUIT NO.2981 of 2014.
Mr. Bharathan Suresh Babu. ...Plaintiff/
… Applicant.
In the matter of :-
Mr. Bharathan Suresh Babu. ..Plaintiff
V/s.
Me. Dinesh Patel ..Defendant.
Appearances :-
Adv.Bhavana Enmul h/f Adv V.R.Gupta & Associates, for plaintiff.
None for defendant
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 19/10/2023
ORAL ORDER
This Notice of Motion is moved by the plaintiff to restore
the suit dismissed in default on 17.02.2018.
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Order on Notice of Motion
No. 1492 of 2018
3. It is contention of the plaintiff that his advocate had
appeared in the matter lastly on 20.01.2018. He wrongly heard next
date given by the Court. Hence, he could not appear before the Court
on the date of the impugned order. Hence, impugned order is passed.
4. It is specific contention of the plaintiff that due wrong entry
taken by the advocate to his diary, there was no presence of the plaintiff
before the Court. The plaintiff did not absent deliberately, but due to
aforesaid reasons which is liable to be condoned and accepted. Hence,
prayed to allow Notice of Motion.
5. The defendant failed to appear and file say. Hence Notice of
Motion is proceeded without say of the defendant.
6. In support of the Notice of Motion, the plaintiff has filed
copy of diary of concerned advocate, wherein the date of the hearing
pertaining to the matter is shown to be listed on 17th March, 2018. As
defendant failed to file reply, there is no reason to disbelieve the case of
the plaintiff at the first site. However, it significant to note that suit was
instituted on 3rd September, 2014. Thereafter, the defendant filed
written statement. Issues were framed on 10th February, 2015. The
record of the suit shows that the plaintiff was absent on many dates of
the hearing. On the contrary, the defendant was present. It shows that
the plaintiff was not diligent in conducting the suit. It is submission of
Ld. advocate for the plaintiff if Notice of Motion is not allowed he is the
plaintiff who will suffer irreparable loss. The suit was instituted for
recovery of an amount of Rs.3,88,162/- which
prima facie indicates that
the plaintiff has pecuniary interest in the matter.
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Order on Notice of Motion
No. 1492 of 2018
7. To decide the matter on merit, it would be just and proper
to allow the Notice of Motion.
8. Simultaneously, it is apt to mention that the plaintiff did
not appear on most of the dates of hearing. The defendant had
appeared. The suit was instituted in the year 2013. The plaintiff claims
interest over the suit amount. In such circumstances, if the suit is
restored and decreed with interest, then he is the defendant who will
have face undue loss. In such case, Notice of Motion ensue considerable
cost and necessary direction in the interest of justice as follows, :
ORDER
1. Notice of Motion No. 1492 of 2018 is allowed subject to
cost of Rs. 10,000/- payable within two month of the Order.
2. On payment of aforesaid cost, it be credited to the
DLSA, Mumbai, a the suit be restored to its original stage.
3. Both parties to note that no interest will be levied on the
decreetal amount if the suit is decreed and interest is awarded
from the date of the suit to the date on which the plaintiff will file
or adduce documentary or oral evidence before the Court as cost
of this Notice of Motion.
4. Notice of Motion No. 1492 of 2018 is disposed off
accordingly.
(Dictated and Pronounced in Open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:19.10.2023 Greater Bombay (CR 59).
Declared on : 19.10.2023
Dictated on : 19.10.2023
Transcribed on : 31.10.2023
Checked on : 02.11.2023
Signed on :
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Order on Notice of Motion
No. 1492 of 2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.11.2022 at 5.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 19.10.2023
Order signed by P.O. on 06.11.2023
order uploaded on 22.11.2023
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