Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1852 OF 2019
IN
SHORT CAUSE SUIT NO.412 OF 2013
M/s. Gemini Oils Pvt. Ltd. … Plaintiff
V/s.
M/s. New India Assurance Co. Ltd. … Defendant
Appearances:
Ld. Adv Shrutika for plaintiff.
Ld. Adv. Vaishali Ugale for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R.No.20)
DATED : 13th NOVEMBER, 2019
ORDER
Plaintiff has filed this notice of motion for taking out the
suit from dismissal caption by calling back the orders dated 21.01.2019
and 16.03.2019.
2. It is argued on behalf of plaintiff that on 21.01.2019 matter
was listed for filing evidence affidavit. However, Ld. Advocate could
not attend the matter as he was busy in Hon'ble High Court. Therefore,
matter was adjourned to 16.03.2019 for dismissal order. On
16.03.2019 plaintiff filed application for time to file evidence affidavit.
However, Court has rejected said application. Plaintiff was in search of
certain documents which were more than 30 years old for preparing his
MHCC01-005230-2019
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NM 1852/2019 .. 2 .. Suit No.412/2013
evidence affidavit. Therefore it has taken little time to search those
documents. Said delay is not intentional one. Plaintiff has good case
on merit. He should not be deprived from justice on technical grounds.
He is ready to proceed with the suit. Therefore those orders may be
called back and he may be allowed to file evidence affidavit on record.
3. The Ld. Counsel for defendant has resisted the application
on the ground that despite getting sufficient opportunity plaintiff has
failed and neglected to file evidence affidavit on record. Plaintiff has
delayed the hearing by one or other reason. Said delay is intentional
one. Therefore Court has rightly put the matter for dismissal order.
4. As per roznama on 11.07.2018 issues were framed and
matter was listed for filing evidence affidavit. As such on 21.01.2019 it
was second date for filing evidence affidavit. Therefore it cannot be
said that plaintiff has delayed the matter by not filing the evidence
affidavit. Even the record shows that on 16.03.2019 plaintiff applied
for time for filing evidence affidavit. However said application is
rejected. Moreover it is the defence that some documents were old
documents and plaintiff has spent certain more time for searching of
those documents. In absence of any contrary material I have no
hesitation to accept this submission causing delay in filing evidence
affidavit. Similarly, Court should not be too technical to deprive the
parties from substantial justice. So when plaintiff is ready to proceed
with the evidence this Court has no reason to deny the same. In case of
delay certain cost can be imposed. Accordingly the order.
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NM 1852/2019 .. 3 .. Suit No.412/2013
O R D E R
1. NM 1852/19 in SU 412/13 is hereby allowed.
2. The impugned orders dt.21.01.2019 and 16.03.2019 for
keeping this suit for dismissal order are hereby called back
on plaintiff paying cost of Rs.2,000/ to defendant or to
deposit it in the Court on or before next date.
3. On compliance of cost order plaintiff is permitted to file
evidence affidavit.
(Milind V. Kurtadikar)
Judge, (C.R.No.20)
Dt.: 13/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 13.11.2019
Transcribed on : 14.11.2019
Signed on : 14.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14.11.2019 05.45 p.m. Sanjay B. Kaskar
(Stenographer H.G.)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
13.11.2019.
Judgement/order signed by P.O on 14.11.2019.
Judgement/order uploaded on 14.11.2019.
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