Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1847/19(Suit 4948/11)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1847/2019
(CNR NO.MHCC01005205 2019)
IN
S.C. SUIT NO.4948/2011
LKP Securities LTd. ...Plaintiffs
V/s.
Housing Development Finance
Corporation Ltd.(HDFC Ltd) & Ors. .. Defendants.
Appearances :
Adv. S.R Ketkar for plaintiff.
Adv. Benny Joseph a/w Ms. Pallavii Kamath i/b B.J Law office for Deft.
No.1.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 23.10.2021.
ORDER
1. Plaintiff tendered present Notice of Motion for setting aside
order date 15.1.2019, by which Notice of Motion No. 1843/2018 was
dismissed for want of prosecution.
2. Heard both sides. Perused Motion as well as Roznama of
record.
3. It is contention of the plaintiff that, they had appointed an
Advocate Mr.Deepak Jamsandekar, who was critically ill and was
suffering from Ratina. However, the plaintiff were not aware of the ill
health of their earlier advocate and therefore, on 05.12.2017 their Suit
was dismissed in default. Thereafter, they have appointed Adv. Mr.
-- 1 of 4 --
2 NM 1847/19(Suit 4948/11)
D.S.Chandnani. The plaintiff by way of Notice of Motion No.1843/2018
sought restoration of the suit. But, all of a sudden, their advocate Mr.
D.S. Chandnani left practice, which was not within their knowledge.
Moreover, earlier advocate did not tender registered Notice of Motion
and therefore, the Motion was dismissed for nonprosecution.
4. It is further contended that, they have no intention to delay
the matter. But the facts and circumstances of the case was beyond their
knowledge and control. They wanted to diligently proceed with the
matter. Hence, Advocate for the plaintiff prayed for allowing the Notice
of Motion.
5. Per contra, Advocate for the defendants vehemently
opposed the Motion and prayed for rejection of the Motion, with
exemplary costs.
6. I have perused Roznama. It appears that, on 23.9.2019,
Adv. Ms. Khushbu appeared for plaintiff informing that, her senior Mr.
Chandnani had undergone knee cap replacement surgery. Thereafter,
on 14.10.2019, none appeared for the plaintiff and on 6.12.2019, Adv.
Mr. S.R Ketkar filed his Vakalatnama on record. The Motion tendered
by the plaintiff is on affidavit and I have no material to disbelieve the
reasons stated by the plaintiff. Moreover, I am of the view that, every
contentious litigation should be decided on merits. It appears from
record that, the circumstances were beyond control of the plaintiff. I am
of the view that, the plaintiff's advocate could not appear due to his
health issues for which plaintiff cannot be penalized. Therefore, I am of
the view that, the Motion needs to be allowed. Thus, I proceed to pass
following order :
-- 2 of 4 --
3 NM 1847/19(Suit 4948/11)
ORDER
1. Notice of Motion No.1847/2019 is allowed in terms of prayer
clause (a).
2. Order dated 15.1.2019 is hereby set aside and Notice of Motion
No.1843/2018 is hereby restored.
3. Plaintiff is allowed to reconstruct the proceedings of Notice of
Motion No.1843/2018.
4. Plaintiff to bear costs of Motion.
3. Notice of Motion is disposed off accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 23.10.2021 Greater Bombay.
Dictated on : 23.10.2021
Typed on : 25.10.2021
Signed on : 26.10.2021
-- 3 of 4 --
4 NM 1847/19(Suit 4948/11)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
28.10.21, at 1.15 pm (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 23/10/2021
JUDGMENT/ORDER signed by P.O. on 26/10/2021
JUDGMENT/ORDER uploaded on 28/10/2021
-- 4 of 4 --