Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1525 of 2018
CNR No.MHCC010047552018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1525 OF 2018
IN
SUIT NO.1078 OF 2017
Mr. Raman Shamrao Rath and Ors. .. Plaintiffs
Versus
Rath Mansion CHS Ltd. and Ors .. Defendants.
Appearance :
Plaintiffinpersons.
Ld. Advocate Rakesh Mishra for defendants No. 1,2 and 6.
Ld. Advocate Hemant Hasnale for defendant No. 5.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 17.01.2019
: ORDER :
This Notice of Motion is taken out by defendants no. 1 and 2
for condoning the delay of 209 days in filing the written statement and
for settingaside the order dated 31.07.2017.
2. Counsel for defendants submitted that defendant no. 1 is the
society and defendant no. 2 is the authorized officer appointed for the
society. It was further submitted that the plaintiff had filed various
proceedings against the society at various forums including the
contempt petition. It was further submitted that he took the charge of
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the society on 14.03.2017 from Exauthorized officer Mr. B.T. Thokle.
In the month of JuneJuly, 2017 they came to know that the plaintiff
had filed the present suit. They asked their advocate to appear on
20.06.2017. That he was not handed over the full charge of the society
by Exauthorized officer. Thereafter matter was adjourned on
11.07.2017 for filing the written statement. He requested the
authorized officer to hand over the charge, but papers pertaining to
the court proceeding were not fully handed over to him. The
present suit is pertaining to the old civil and criminal proceeding
that occurred 20 years ago. He was handed over remaining charge of
the society on 21.07.2017, but there were no document civil and
criminal proceeding. Due to non availability of the record he lost track
of the matter. In January, 2018 he was informed that exparte order
was passed against him. He took search and came to know about the
impugned order. It was further submitted that there is delay of 209
days in filing the written statement. Defendant no. 1 is the cooperative
housing society, which is formed for the benefit of the members. The
delay is not intentional. Thus, they prayed to condone the delay.
3. Plaintiffinpersons appeared and submitted that no specific
reason is given for the delay. Society has fabricated the record by
introducing the dead persons as members of the society and due to
this reaudit was order by Deputy Registrar. Plaintiff further submitted
that the defendant by fabricating the record are trying to gain illicit
money and are harassing the plaintiff. It was further submitted that
they have deliberately not filed their written statement. They were
aware about this proceeding. They relied on Judgment in Chandrakant
S/o Laxman Kulbhaiyya and another Vs. State of Maharashtra and
others reported in 2915(2) Mh.L.J 323, where it was observed by the
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Hon'ble Court that Court has discretion to condone the delay if
sufficient cause is shown. Sufficient cause means any cause which
prevents parties to approach the court within sufficient time and in
another judgment in State of Gujarat Vs. Sayed Mohd. Baquir EL
Edross report in (1981) 4 SCC, wherein the Apex Court has observed
that when no ground for condonation of the delay was made out they
refused to setaside the abatement
4. Heard Ld. Counsel Rakesh Mishra for defendants no. 1, 2 and
6, Advocate Hemant Hasnale for defendant no. 5 and Plaintiffs in
person. Perused the material on record.
5. Upon considering the hearing and perusing the material on
record it is apparent that the defendant no. 1 is the society and
defendant no. 2 is the administrator of the society. As per the
defendants the authorized officer had handed over them the charge of
the society on 14.03.2017. Further it reveals that the remaining charge
was handed over on 21.07.2017. But as per the contention of the
defendants the documents pertaining to the present case was not
handed over and due to this they lost tack of the matter.
6. In this case exparte order was passed on 31.07.2017. The
roznama shows that the defendant had attended the matter on
19.06.2017 and thereafter they stopped to attending the matter. Suit
proceeded exparte against said defendant no.1 and 2 on 31.07.2017.
On the same day written statement was filed by defendant no 3. and on
its previous date written state filed by defendant no. 5. It is pertinent
to note here that all the defendants are resident of one building and
defendants no.3 to 6 are the Exmanaging members of defendant no. 1
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society. Thus, contention of the defendants cannot be believed that
they were not having record and due to this they lost tack of the
matter.
7. This, shows that defendants no. 1 and 2 were not persuing
the matter diligently. They gave their appearance in the court on
19.06.2017 thereafter they stopped attending the matter till
05.05.2018. The reasons given by the defendants no. 1 and 2 does not
appears to be probable as the members of the managing committee
were filing their written statement. Further nonavailability of record
is not the reason to lost track of the matter. Thus this is not the
sufficient cause as observed by their Lordship in the case of
Chandrakant S/o Laxman Kulbhaiyya. Due to this the court is not
inclined to condone the delay. Hence, considering this accordingly I
pass the following order.
: ORDER :
Notice of Motion No. 1525 of 2018 is dismissed.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 17.01.2019 Gr. Mumbai
Dictated on : 17.01.2019
Transcribed on : 17.01.2019
Signed on : 17.01.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
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On 18.01.2019 at 5.32 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
17.01.2019
JUDGMENT/ORDER signed by P.O. on 17.01.2019
JUDGMENT/ORDER uploaded on 18.01.2019
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