Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 14 in Comm. Suit 297/2021
ORDER BELOW EXHIBIT 14
IN
COMMERCIAL SUIT NO. 297 of 2021
Bank of India ...Plaintiff
Versus
Mrs. Naina Manoj Singh & Ors. ….Defendants
Appearance:
Adv. Ms. Priya Nigvekar for Plaintiff.
Adv. Mr. Ravindra Nagarkoti for Defendant No. 1.
Adv. Manish Doshi for Defendant Nos. 3 and 4.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 9th DECEMBER 2022
ORDER
This is an application filed by the plaintiff praying that the
matter may be removed from the caption of dismissal and the plaintiff
may be permitted to file affidavit of evidence along with compilation of
original documents. According to the plaintiff, due to medical
emergency with an Advocate, the plaintiff bank could not file Affidavit
of Evidence. The evidence of the plaintiff bank is ready and the plaintiff
bank is now willing to proceed with the matter. Hence, the plaintiff
prayed that the matter may be removed from the caption of dismissal
and the plaintiff may be allowed to file affidavit of evidence along with
compilation of original documents.
2. The defendant no. 1 by filing reply resisted the application
on the ground that on several occasions, the adjournment was granted
to the plaintiff. However, the plaintiff and its Advocate deliberately
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failed to appear before the Court. The conduct of the plaintiff itself
shows that they have just filed the suit to harass the defendants. Hence,
the defendant no. 1 prayed that the application filed by the plaintiff
may be rejected and the suit of the plaintiff may be dismissed for want
of prosecution.
3. The defendant nos. 3 and 4 also submitted reply to the
application and resisted the application filed by the plaintiff. The
defendant nos. 3 & 4 submitted that the said matter was listed before
the Court from time to time. However, neither the plaintiff nor its
Advocate remained present at the time of hearing of the suit. The
plaintiff continuously failed to appear before the Court. The plaintiff
filed the present application without providing any sufficient cause and
reasons for non appearance. The plaintiff has filed the present suit for
harassing the defendant nos. 3 and 4. Lastly, the defendant nos. 3 and 4
prayed for dismissal of the application as well as suit itself.
4. Heard Learned Advocate Ms. Priya Nigvekar for Plaintiff,
Learned Advocate Mr. Ravindra Nagarkoti for Defendant No. 1 and
Learned Advocate Mr. Manish Doshi for Defendant Nos. 3 and 4.
5. Perused the contents of the application and say filed by the
defendants. The plaintiff prayed that the matter may be removed from
the caption of dismissal of the suit and the plaintiff may be permitted to
file affidavit of examination in chief. The defendants strongly objected
for removing the matter from the caption of the dismissal. It is seen
from the record that as the plaintiff was not present at the time of
hearing of the suit, the Court kept the matter for dismissal. Now, the
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plaintiff is ready to proceed with the matter. The plaintiff is also ready
to file his affidavit of examination in chief along with documents. In my
view, the plaintiff should be given a reasonable opportunity to proceed
with the matter, otherwise great prejudice will be caused to the
plaintiff. On the contrary, no loss will be caused to the defendants. The
matter can be heard on merit by giving an opportunity to both the sides
to adduce their evidence. No purpose will be served by dismissing the
suit in default. Therefore, I am of the view that for avoiding multiplicity
of proceeding, it is necessary to remove the matter from the caption of
dismissal. Hence, the application needs to be allowed. Hence, I pass the
following order :
ORDER
1) Application at Exh. 14 is allowed.
2) Matter be removed from the caption of dismissal.
3) The plaintiff is directed to file affidavit of examination in
chief along with documents within one month from the
date of this order.
4) Order accordingly
Dated : 09.12.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 09.12.2022
Typed on : 10.12.2022
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4 OBE 14 in Comm. Suit 297/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10.12.2022 5.45 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
09.12.2022
Judgment/order signed by P.O on 10.12.2022
Judgment/order uploaded on 10.12.2022
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