Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1573/18(suit 374/16)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1573/2018
(CNR NO.MHCC010048922018)
IN
S.C. SUIT NO.374/2016
1. Mr. Mahesh G. Garodia
2. Parmeshwari Devi Garodia Trust ...Plaintiffs
V/s.
M/s. Asrani Associates. ...Defendants.
Appearances :
Adv. Mr. Rahul L. Tiwari for plaintiff.
Adv. Mr. G. S. Bhat for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 16.11.2021.
ORDER
1. Defendant no.1 has filed instant Notice of Motion seeking
following reliefs :
(a) that the order dated 27th October 2017 to proceed exparte
be set aside;
(b) that the delay of 21 months in filing the Written Statement
be condoned and written statement be taken on record;
(c) For such other order and further reliefs as this Hon'ble Court
deem fit.
2. It is contended by defendant no.1 that, he was not aware of
the suit till 29.1.2018. He instructed his advocate Mr. G.S. Bhat to
check status of the matter filed by M/s. Chereshwar Coop. Housing
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Society Ltd. and themselves against Municipal Corporation of Gr.
Mumbai and 3 Ors. in this court. While checking the status of the
matter, their advocate found the present matter on the website of this
court and accordingly he informed the defendant. Therefore, the
defendant no.1 directed his advocate to make an enquiry. Upon that it
was revealed that, the present matter was kept on 13.2.2018 for
exparte hearing.
3. It is further contended that, as they were not having copies
of proceedings, therefore their advocate Mr. G.S Bhat issued letter
dated 30.1.2018 to the advocate of the plaintiff Mr. Rakesh Agarwal
and sought copy of the plaint. Said Advocate Mr. Agarwal of the
plaintiff supplied copy of the plaint on 6.2.2018. It is further contended
that, after discussion with his son Abhishek Asrani, he came to know
that some notice/summons were received by him somewhere in the
month of April/May,2016. However, he failed to inform the same to the
defendant no.1. In fact, the aforesaid summons was misplaced by him
and he forgot to tell about the same.
4. It is further contended that, the defendant is not keeping
well since last 23 years. He had undergone heart surgery and also
suffering from severe diabetics. Therefore, he is unable to attend his
office regularly.
5. It is contended that, on perusal of Roznama of this
proceeding, which was obtained by the defendant from the website of
this court, the matter was on board on 3.3.2016 and it was adjourned
to 3.6.2016 for service of writ of summons and thereafter, it was
adjourned from time to time. It is specifically contended by the
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defendant that, they have not received writ of summons of suit
proceedings on the address mentioned in the cause title as offices are
closed since year 2012. On perusal of the Roznama , it seems that
service report was filed by the plaintiff on 13.2.2017 and matter was
adjourned to 28.4.2017 for appearance of the defendant. Further they
were not aware of the date of the matter, therefore nobody had
appeared in the matter. Thereafter, the matter was adjourned to
13.2.2018 for exparte hearing. Thus, due to aforesaid reasons, the
defendant could not remain present in the matter.
6. It is further contended that, the defendants have very good
defence. They would have attended the court if writ of summons were
served upon them or if his son would have informed him about the
service of writ of summons. Therefore, for the aforesaid reasons, the
impugned order dated 27.10.2017, to proceed exparte against the
defendants, needs to be recalled and the defendant may be allowed to
file Written Statement on record.
7. The Motion is opposed by the plaintiff by filing say. It is
contended by the plaintiff that, there is no prayer made by the
defendant for condonation of delay in preferring the instant notice of
motion. Moreover, there is no sufficient cause shown by the defendant
to condone the delay in filing Written Statement.
8. It is further contended that, the defendant made false
statement on oath. Bailiff's report clearly shows that, Abhishek Asrani,
who is son of proprietor of defendant no.1, had received the summons
on 1.12.2016. As per CPC, the aforesaid service is a good service. The
defendant made false statement that they have not received writ of
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summons, therefore the plaintiff prayed for rejection of the Motion.
9. Heard both sides. Perused Motion and reply. The plaintiff
filed instant suit seeking directions against the defendant to disclose as
in what manner the defendant shall allot deficit Municipal built up area
of 230 sq. ft. in Garodia Market and allot same to the plaintiffs and
hand over its possession. It is not in dispute that, the writ of summons
were duly served upon the defendant on 1.12.2016. The defendant is
represented by one Suresh Chanchaldas Asrani and his son Abhishek
Asrani, who has received the writ of summons.
10. As per Order 5 Rule 15 of CPC, service upon son Abhishek
Asrani is a good service. It is contended by the defendant that, his son
failed to inform about receipt of summons and it is misplaced. It is
further contended that, since last 23 yrs., defendant Suresh Asrani was
not keeping well and he had undergone heart surgery and also suffering
from diabetics. It is contended by the plaintiff that, the defendant made
false statement on oath. Therefore, the Motion needs to be dismissed.
11. In support of his submission, he has relied on the judgment
of the Hon'ble Delhi High Court in the case of S.N. Aggarwal V/s. State
Bank of India and Ors.(1996 IIAD Delhi 565 = 63 (1996) DLT 865),
wherein the petitioner who had approached the court by filing Writ
Petition had not disclosed about filing of earlier Writ Petition and the
petitioner withheld the fact of dismissal of earlier Writ Petition from the
court and deliberately made incorrect and false statement on affidavit
that he has not filed any other petition challenging impugned order
therein. Therefore, the Hon'ble Delhi High Court dismissed the said
Writ Petition.
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12. The plaintiff further relied on unreported order of the
Hon'ble Uttarakhand High Court passed in the case of Abid Ali V/s.
State of Uttarakhand and Others (Writ Petition (S.S.) No. 1282 of
2017) decided on 13.3.2018. In the said case, the Hon'ble Uttarakhand
High Court found that, false statement has been made to recall
impugned order.
13. In the present case, the defendant disclosed that,
somewhere in AprilMay 2016, his son Abhishek Asrani had received
notice/ summons but it was misplaced and he forgot to inform him
about the same. It is the specific contention of the defendant that, the
writ of summons was not served upon him personally at the address
given in the cause title as the office was closed since 2012. On perusal
of Bailiff's report, it appears that, the defendants were served upon at
second address of the defendant. Hence, the contention of the
defendant that, their office was closed in the year 2012 cannot be
accepted at all. The defendant cited reasons of his illhealth on
affidavit. Moreover, the matter did not travel beyond passing of exparte
evidence. For the aforesaid reasons, the delay can be considered and
the defendant can be allowed to file their Written Statement.
14. I have perused the plaint. It appears that, the plaintiff is
seeking directions against the defendant to disclose as to in what
manner the defendant shall allot deficit municipal built area of 230 sq.
ft. in Garodia Market to allot the same to the plaintiffs and hand over its
possession to the plaintiffs and execute deeds, documents as may be
required. Looking to the prayers of the plaintiffs, I am of the view that,
the suit needs to be decided on merits. In the event if the suit is
proceeded exparte, the truth may not come on record. For the conduct
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of the defendant, costs can be imposed and Written Statement can be
taken on record. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No.1573/2018 is allowed in terms of prayer
clause (a) and (b), subject to payment of costs of Rs.15,000/ (Rs.
Fifteen Thousand only) to be payable by defendant no.1 to the
plaintiff.
3. Upon payment of the costs, Written Statement of defendant no.1
be taken on record.
4. Defendant no.1 to bear costs of Motion.
5. Notice of Motion is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 16.11.2021 Greater Bombay (CR 03)
Dictated on : 16.11.2021
Typed on : 16.11.2021
Draft given on : 16.11.2021
Signed on : 25.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
25.11.2021 at 2.50 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 16/11/2021
JUDGMENT/ORDER signed by P.O. on 25/11/2021
JUDGMENT/ORDER uploaded on 25/11/2021
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