Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1585 of 2018
CNR No.MHCC010049202018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1585 OF 2018
IN
S.C.SUIT NO.5034 OF 2012
Mr. Rajesh Shankarrao Powar( since deceased)
1(a) Smt. Kamal R. Powar and Ors. .. Plaintiffs.
Versus
M/s. Balan & Chedda Developers
Pvt. Ltd. and Ors. .. Defendants
Ld. Advocate Verms for plaintiffs.
Ld. Advocate Anand for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 24.08.2018
: ORDER :
This Notice of Motion is taken out by defendants for setting
aside the order of “No Additional Written Statement” passed against
him on 03.12.2016.
2. Counsel for plaintiff submitted that as per the defendant
plaintiff had taken out the chamber summons for amendment of plaint,
which was allowed. They had prepared additional written statement on
12.08.2015. But it could not file as the court was vacant and due to
genuine difficulties of the advocate. They took out the notice of motion
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to setaside no additional written statement order, which was earlier
allowed. Defendant was directed to pay cost of Rs. 2,000/ to the
plaintiff, which was paid by the defendant on 08.11.2016. But due to
oversite and they were under impression that the additional written
statement was filed on record. The delay is not intentional and due to
genuine difficulties additional written statement could not filed.
3. Plaintiff appeared and submitted that the defendant had
taken out the Notice of Motion No. 4804/2015 to setaside the order of
no additional written statement. The said order was setaside and many
opportunities were given to the defendant to file their additional
written statement on record. But they failed to file it. There is delay of
30 months and not 16 months as submitted by the defendant.
Thereafter they filed their evidence alongwith compilation of document.
Defendant is delaying the matter and prayed to reject the motion.
4. Heard Counsel for plaintiff. Perused the affidavit in support of
motion filed by the plaintiff.
5. Upon considering the hearing and perusing the material on
record it is apparent that the plaintiff had amended the plaint.
Opportunity was given to the defendant to file their additional written
statement on 15.07.2015 and on 12.08.2015. But they failed to filed
their additional written statement. Hence, order of no additional
written statement was passed on 13.10.2015.
6. Thereafter, Notice of Motion No. 4804/2015 was taken out,
which was allowed on 05.08.2016. Defendant was directed to pay the
cost of Rs. 2000/. The cost was paid. But again the defendant failed to
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file their additional written statement on record. Hence, order was
again passed on 03.12.2016 and thereafter this second notice of motion
is taken out to setaside the said order.
7. Upon considering the conduct of the defendant it appears that
they are avoiding to file their additional written statement by making
false submissions and on their part they are contributing to delay in the
progress of the suit. Twice the opportunity was given to the defendant
by this court to file their additional written statement on record. But on
both the occasions on one pretext or the other they had not filed their
additional written statement on record. Thereafter, plaintiff filed his
evidence alongwith compilation of document and now the matter is
pending for crossexamination. Thus, considering the conduct of the
defendant they cannot be permitted to file their written statement and
to further delay the matter. There is no merit in this motion and in the
submission of the defendant. Accordingly, I pass the following order.
: ORDER :
Notice of Motion No.1585 of 2018 is hereby rejected.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 24.08.2018 Gr. Mumbai
Dictated on : 24.08.2018
Transcribed on : 24.08.2018
Signed on : 24.08.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
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On 27.08.2018 at 11.10 a.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
24.08.2018
JUDGMENT/ORDER signed by P.O. on 24.08.2018
JUDGMENT/ORDER uploaded on 27.08.2018
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