Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 1513/18 in Su 134/17 1
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1513/2018
IN
S.C. SUIT NO.134/2017
Mr. Mahesh Mohanrao Dalvi ..Plaintiff
V/s.
1. Mrs. Rajshree Ajay Sawant
2. Master Sahil Ajay Sawant ..Defendants
Adv. S.D. Patil for defendant.
Adv. B.K. Raje for plaintiff.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 11.6.2019.
ORDER
1. This Notice of Motion is taken out on behalf of defendant
for seeking condonation of delay in filing W.S. The N/M is supported by
an affidavit filed by Mrs. Rajeshri Sawant (Defendant no.1).
2. After hearing the parties, leave was granted to register draft
N/M. The defendant was directed to serve copy on other side. Thereafter
original N/M was tendered and copy was served on the other side. The
plaintiff has filed the reply to the N/M. I have heard Ld. Counsels for the
plaintiff and the defendant on this N/M on 7.6.2019 at length.
3. It is submitted on behalf of the Counsel for the defendant
that, there has been delay of about 100 days in filing the W.S. It is
submitted that, the defendants were served with the suit summons in the
month of JulyAugust 2017. Thereafter the defendants had tried to
contact their advocate for taking steps in the matter but due to ill health
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N/M 1513/18 in Su 134/17 2
of the defendant no.1 and defendant no.2, W.S could not be filed within
time. It is further submitted that, there were also financial crisis faced by
the defendant no.1 during above said period. Therefore, they could not
arrange for money for paying fees of advocate. After consulting the
advocate, defendant no.1 had collected necessary documents for
preparing W.S. It is now filed along with this N/M. There has been
delay of about100 days in filing the W.S which deserves to be condoned
in view of the facts and circumstances of the case. No prejudice should
be caused to the plaintiff if present N/M is allowed.
4. The N/M is strongly opposed by Ld Counsel for the plaintiff.
He submitted that, the grounds stated in the N/M for codonation of
delay are not correct and acceptable. The delay of 100 days is not small
delay and sufficient grounds are not stated. No documentary proof is
filed regarding the illness of the defendant during the relevant period.
The plaintiff has denied that there were financial crisis for the defendant
no.1 and that she is surviving upon maintenance as per order of the
family Court. It is submitted that, the defendant no.1 is residing with
her husband and there is no question of her facing any financial crisis as
alleged. It is lastly submitted that, if the application for condonation of
delay is allowed it will cause prejudice to the plaintiff. Hence, N/M is
liable to be rejected.
5. Considering the facts and circumstances mentioned in the
N/M supported by the affidavit and after considering oral submissions
made by Ld. Counsels for both sides, I am of the opinion that, the delay
of 100 days is not small delay, however no prejudice will be caused to
the plaintiff if the delay is condoned subject to some cost, which will
compensate the plaintiff so far as delay is concerned in decision of the
suit. Hence, I proceed to pass following order:
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N/M 1513/18 in Su 134/17 3
ORDER
1. N/M No.1513/2018 is made absolute in terms
of prayer clauses (A) & (B) subject to payment of cost of
Rs.2,000/ by defendant to the plaintiff within two weeks
from today, failing which the notice of motion shall stand
dismissed.
2. If the cost is paid, the written statement shall
be taken on record on or before the next date.
3. Notice of motion stands disposed of.
(V.V. VIdwans)
Judge, City Civil Court,
Date: 11.6.2019 Gr. Bombay (C.R. 03)
Dictated on : 11.6.2019
Typed on : 11.6.2019
Signed by HHJ on : 12.6.2019.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :12.6.19
TIME: 5.15 pm . (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 11.6.19
Judgment/ order signed by P.O on 12.6.19
Judgment/ order uploaded on 12.6.19
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