Order 1

Order Details: Chamber summons
Pdf Text: C/S No.710/18 1 Suit No.2792/16
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.710/2018
(CNR No.MHCC010047732018)
IN
S.C SUIT NO.2792/2016
Ankush Tibrewala .. Applicant/
Defendant no.3
In the matter of :
3A Financial Services Limited .. Plaintiff.
V/s.
1. Tata Consultancy Limited
2. TSR Darashaw Private Limited
3. Ankush Tibrewala
4. Pradip Kumar Gupta ..Defendants
Appearance :
Ld. Advs. Mr. Dhangar @ Mr.Gosar and Mr.J.R. Vyas for plaintiff.
Ld. Adv. Mangesh Bhende for defendant no.3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 20.1.2020.
ORAL ORDER
1. Perused Chamber Summons supported by an affidavit of
Mr.Ankush Tibrewala on behalf of defendant no.3. The chamber
summons is strongly opposed by the plaintiff by submitting affidavit in
reply filed by Mr.Ajay Rathod. Seen and considered the same.
2. I have heard Ld. Counsels for both sides.
3. Present chamber summons is taken out by defendant no.3
for setting aside/ modifying the order dated 9.6.2017 to the extent of
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C/S No.710/18 2 Suit No.2792/16
suit proceeding exparte against defendant no.3. It is submitted by Ld.
Counsel for defendant no.3 that, the defendant had received writ of
summons in the suit and had instructed Advocate Mr. Mangesh Bhende
(i.e. me) to appear before the court. Accordingly, I had appeared before
the court and had undertaken to file V.P. on next date. Ld. Counsel for
the defendant no.3 submitted that, he intended to challenge
maintainability of the present suit by taking out necessary Motion on
the ground that, in respect of same cause of action defendant no.3 had
filed title suit bearing No.1279/2013 at Kolkata against defendants no.1
and 2 and others. On 14.3.2017, Board was discharged and matter was
adjourned to 9.6.2017, till then, Ld. Counsel for the plaintiff had not
served copy of plaint on the defendant no.3. However, on 9.6.2017,
Advocate for the defendant no.3 was unable to reach the court in time
due to his personal difficulty and therefore, the order came to be passed
to proceed exparte against the defendant no.3. Similarly, order was also
passed in two other connected suits against the defendant. It is
submitted that, the suit was fixed for compliance by the plaintiff on
9.6.2017 and defendant no.3 was not expected to take any active part
in the proceeding. Ld. Counsel for the defendant no.3 submitted that,
he has taken out separate Motion for challenging the maintainability of
the suit. Under the above circumstances, it is submitted that, the order
dated 9.6.2017 is liable to be set aside/ modified, in the interest of
justice.
4. Ld. Counsel for the plaintiff has strongly opposed the
chamber summons and relied on affidavit in reply and submitted that,
the chamber summons taken out by defendant no.3 is not maintainable
in law. It is misconceived and the facts stated in the supporting affidavit
are contrary to the record and therefore, it is liable to be dismissed with
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C/S No.710/18 3 Suit No.2792/16
compensatory costs. Ld Counsel for the plaintiff has denied all the
adverse allegations made in the supporting affidavit.
5. After considering the submissions made by Ld. Counsels for
both sides, I find that, the chamber summons, as framed and filed and
taken out by defendant no.3, is itself defective/ not maintainable in law
because the relief, which is sought in the chamber summons, cannot be
granted by this court n a chamber summons proceeding, as the said
relief can be obtained by the defendant no.3 by taking out necessary
Motion. It appears that, inadvertently, Ld Counsel for the defendant
no.3 has taken out the chamber summons for setting aside/modifying
the order dated 9.6.2017, which is not maintainable as per Bombay City
Civil Court Act, 1948 and Rules framed thereunder. Hence, I proceed to
pass following order:
ORDER
1. Chamber Summons No.710/2018 is hereby dismissed,
as not maintainable in law with a liberty to the Ld.
Counsel for the defendant no.3 to take out appropriate
Motion/ steps for seeking the relief, which is sought in
the present chamber summons.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 20.1.2020 Gr. Bombay (C.R. 03)
Dictated on : 20.1.2020
Transcribed on: 20.1.2020
Draft given to HHJ on : 20.1.2020
Signed by HHJ on : 23.1.2020
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C/S No.710/18 4 Suit No.2792/16
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 23.1.2020
(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 20.1.2020
Judgment/ order signed by P.O on 23.1.2020
Judgment/ order uploaded on 23.1.2020
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