Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1586 OF 2018
CNR MHCC010049212018
IN
S.C.SUIT NO.1444 OF 2014
CNR MHCC010053912014
Kishor Mansatta & Anr. )....Plaintiff.
V/s.
Shri. Cutchi Lohana Mahajan & Ors. )...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.02)
DATE : 04/09/2018
Adv.Akshar Laws for the defendants
Adv. Mukesh V. Aiya for the plaintiff
ORAL ORDER
This notice of motion is taken out by defendants no. 1 to 3,
5 and 6 for condoning the delay and filing written statement on record.
It is supported by an affidavit being executed defendant no.2 Mr.
Vasantkumar Nathubhai Manek. The plaintiff by filing reply on
affidavit being executed by the plaintiff no.1 Shri Culchi Lohana
Mahajan has strongly opposed the notice of motion.
2. Heard learned advocates of both the sides.
3. At the very outset of the present case, learned advocate for
the defendants made a statement at bar that the written statement of
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defendants no.1 to 3 , 5 and 6 are ready in all respects and could be file
on record today itself. Considering this submission, I have gone
through the reasons as mentioned in the affidavit in support of the
notice of motion. The main dispute is between the trust and the
defendant and the main prayer in the suit is for declaration regarding of
the resolution. Defendants no.1 to 3, 5 and 6 are the trustees of the
trust who intends to contest the suit on merits. It is submitted that
several matters before different authorities are pending between the
same parties. So also some chamber summons and notice of motion was
pending in this matter. The learned advocate for the defendant has
drawn may attention to the order dated 18th December 2017 passed by
my learned predecessor which reads as under “
“Order: It is settled position that appearance of the
advocate of the defendant in Notice of Motion is to be treated as
appearance in the suit . In case the advocate of plaintiff is able to prove
service of the defendant on next date.”
The advocate for the plaintiff submitted that the writ of
summons is not served in the present case. May that, as it be, this
matter is of the year 2014 and the records shows that from time to time
the matter was adjourned either for the notice of motion hearing or the
preliminary issues or for the hearing on chamber summons. The
records also reflects that the defendants no.1 to 3, 5 and 6 were
regularly been represented and only the written statement remains to
be placed on record. In my considered opinion, the reasons as
envisaged in paragraphs 4 to 14 in the affidavit in support of notice of
motion are the genuine reasons for which the delay in filing written
statement can very well be condoned. Even otherwise, considering the
nature of the suit and for giving fair opportunity to defendants to
contest it on merits , I am of the opinion that they may be permitted to
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file the written statement on record. Under the given circumstances,
certain costs also needs to be imposed upon the defendants before
allowing them to file written statement on record. Considering over all
circumstances, I pass the following order.
ORDER
1. Notice of motion no. 1586/18 is allowed and made
absolute in terms of prayer clause (a) and (b) subject to the conditions
that defendant shall pay the cost of Rs.2000/ to the District Legal
Services Authority , Mumbai within two weeks and with further
direction that the defendant shall placed the copy of written statement
on record today itself.
2. It is made it clear that the written statement will be
exhibited only after payment of costs.
3. Notice of motion is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
City Civil & Sessions Court,
Greater Mumbai.
Date:04/09/2018
Dictated on : 04/09/2018
Transcribed on : 06/09/2018
Signed on :
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date 10/09/2018
Time at 11.35 a.m.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.02)
Date of Pronouncement of
JUDGMENT / ORDER
04/09/2018
JUDGMENT / ORDER signed by
P.O.on
06/09/2018
JUDGMENT / ORDER uploaded on 10/09/2018
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