Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1526 of 2018
CNR No.MHCC010047562018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1526 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 defendant no. 6 for
condoning the delay of 273 days in filing the written statement and for
settingaside the order dated 26.09.2017, whereby suit proceeded ex
parte against him.
2. Counsel for defendant submitted that he is the senior citizen
and retired person and presently residing in USA. Due to his old age he
is unable to travel. In June, 2017 he came to know about the suit
when he received phone call from the other residents of the society.
He executed the power of attorney in USA on 22.09.2017 in favour of
Ratnaben K. Diwankatera. He sent copy in October, 2017 to his
attorney. The said attorney went abroad to attend the wedding on
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: 2 : Notice of Motion No.1526 of 2018
08.11.2017 and returned on 06.02.2018. She came to Mumbai on
06.03.2018 for filing the written statement, where she came to know
that an exparte order was passed against the defendant on 26.09.2017.
She immediately obtained certified copy and filed the present motion.
It was submitted that the delay is not intentional. Defendant no. 6 is
the senior citizen and residing abroad and prayed to condone the
delay.
3. Plaintiffinpersons appeared and submitted that even if the
defendant no. 6 is not residing in India his attorney is at Anand in
Gujarat. It was submitted that the document contended that
brother of the defendant no. 6 stays on the first floor was present when
the writ of summons was affixed on door of the defendant no. 6.
Defendant no. 6 was the member of managing committee during the
the period of 2009 to 2014 and denied that he is the an old
person. Plaintiff 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 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. It was submitted that the grounds given for condonation of
the delay are not genuine and proper and prayed to dismiss the motion.
4. Heard Ld. Counsel Rakesh Mishra for defendants no. 1,2 and
6, Advocate Hemant Hasnale for defendant no. 5 and Plaintiffs in
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: 3 : Notice of Motion No.1526 of 2018
person. Perused the material on record.
5. Upon considering the hearing and perusing the material on
record it is apparent that defendant no. 6 is 75 years of age and is
presently residing in USA. He had given power of attorney on
22.09.2017. It was signed before the Vice Consul (Consulate
General) of India, Atlanta in USA. Further the travel itinerary of the
attorney filed on record which reveals that she went out of India on
08.1.2017 and returned on 07.02.2018. Further the train ticket is filed
on record dated 06.03.2018. It prima facie reveals that she had came
to Mumbai.
6. From the perusal of roznama it appears that when the ex
parte order was passed against the defendant no. 6 he was in USA
and after coming he came to know about this matter he appointed
his attorney to file the written statement and to pursue the litigation.
His attorney is residing at Anand Gujarat, who came to Mumbai for
filing the written statement on 06.03.2018, but could not filed it as the
matter had proceeded exparte against the said defendant.
7. The contention of the defendant is supported by the
document, which can be considered by this court while deciding the
issue of condonation of the delay. Thus this is the sufficient cause as
observed by their Lordship in the case of Chandrakant S/o Laxman
Kulbhaiyya. In the opinion of the court upon considering the hearing
and perusing the supported documents sufficient cause has been
made out to condone the delay by imposing costs. Thus, an opportunity
can be granted to the defendant no. 6 to file his written statement and
to contest the matter on merit. Hence, considering this accordingly I
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: 4 : Notice of Motion No.1526 of 2018
pass the following order.
: ORDER :
1. Notice of Motion No. 1526 of 2018 is allowed in terms of
prayer clause (a), (b) and (c) subject to cost of Rs. 5,000/.
2. Cost be paid to the plaintiff on or before next date.
3. After the cost is paid written statement be taken on record.
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.”
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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