Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1913/2019 in Sum. Suit No.5580/2007
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1913 OF 2019
CNR NO.:MHCC010053212019
IN
SUMMARY SUIT NO. 5580 OF 2007
(HIGH COURT SUIT NO.2379 OF 2007)
Shri Manish Pravin Shah (since deceased) ]
Through the Executor of his Will ]
Mrs. Heena Nainesh Shah ]
nee Miss Hena Pravin Shah ]...Plaintiff
V/s
Sameer Pravin Shah & Anr. ]...Defendants
Appearances:
Advocate Ms. Manisha Mohd. for the plaintiff.
Advocate Mr. Vaishnav for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 21st JANUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by plaintiff praying to restore the
suit and set aside Order dated 15.02.2014.
2. Plaintiff has stated that her brother Manish Shah i.e. original
plaintiff died on 30.01.2019. She has further stated that the original
plaintiff died after a prolonged illness and repeated hospitalization. She
-- 1 of 7 --
:2: N.M. No.1913/2019 in Sum. Suit No.5580/2007
has further stated that the Suit was transferred from the Hon'ble High
Court at Bombay to the City Civil Court on 06.11.2012 and it was
renumbered. She has further stated that no Notice was issued on or
after 07.08.2013. She has further stated that the Hon'ble Sessions Judge
by his Order dated 07.08.2013 directed the Office to issue Notice to
both the parties for appearing. She has further stated that the enquiry
with the Board Department of this Court reveals that no Notice was
issued on or after 07.08.2013 for hearing on 25.09.2013. Therefore, the
original plaintiff was not aware of the transfer of this case to this Court.
Plaintiff's Advocate was also not issued Notice by the Department,
therefore, the Advocate continued to be under impression that the case
would appear in due course. She has further stated that as the original
plaintiff was not aware of the transfer of the case to this Court,
therefore, he was not able to attend the Court on the subsequent
hearings of the suit and the suit was dismissed on 15.02.2013.
3. Applicant has stated that the deceased plaintiff left his Last Will
bequeathing all assets including the amounts recoverable from
defendant No.1. He has further stated that great prejudice would be
caused to the minor daughter Raina Manish Shah, who is put under
care of the applicant to ensure that the daughter of original plaintiff
received all the assets and properties of Late plaintiff, Manish Shah.
4. Applicant has stated that after demise of her brother i.e. original
defendant she sat down with the Will of the deceased and contacted the
Advocate of deceased plaintiff and after getting the information about
the status of the case she filed Notice of Motion. She has further stated
that she has applied for the grant of Probate and it is pending in the
Hon'ble High Court at Bombay. She has further stated that she is not
-- 2 of 7 --
:3: N.M. No.1913/2019 in Sum. Suit No.5580/2007
seeking any personal benefit. She has appointed as the Executor of the
Will to protect the interest of the minor daughter of deceased plaintiff
and to ensure that his assets and properties are handled properly and
given to the minor. Applicant has admitted that the original plaintiff has
divorced his wife and stated that the dissolution of their marriage is
nowhere defects of the rights of the children from the marriage. She has
further stated that Raina is the daughter of deceased plaintiff and
deceased plaintiff was very much in touch with his daughter and visited
Mauritius to meet her. She has further stated that the properties
mentioned in the Will are the personally acquired properties of the
deceased or received by him from his father. She has further stated that
it was desire of the deceased plaintiff that if any, money is received in
the above case, the same shall be paid over to his minor daughter
Raina. She has further stated that even if Raina's mother is remarried
or that Raina is under the care and custody of her mother, she is not
cease to be the daughter of the deceased.
5. Applicant has further stated that she came to know about the
dismissal of the Suit on 27.02.2019. She has further stated that no
prejudice, loss or harm will be caused to defendants, if delay in taking
out Notice of Motion is condoned and prayed to allow Notice of Motion.
6. Defendant No.1 has filed reply and admitted that the original
plaintiff died on 30.01.2019. He has further contended that the alleged
executor of the Will had no right to file this application. He has further
stated that he is the younger natural brother of the deceased and has
not received any notice of the alleged probate proceedings. He has
further stated that the delay in taking out Notice of Motion is 2184
days. He has further stated that unless probate is granted the applicant
-- 3 of 7 --
:4: N.M. No.1913/2019 in Sum. Suit No.5580/2007
is not having any right to proceed with the suit as executor of the Will.
He has further stated that it is improper to make a statement that
plaintiff was not aware of transfer of case from the Hon'ble High Court
to City Civil Court. Defendant has denied the alleged Last Will of the
original plaintiff. Defendant No.1 has further stated that the original
plaintiff divorced his wife about 1012 years back and minor daughter
Raina is not under deponent's care and has not been under the
deceased's care either for more than 10 years. Defendant No.1 has
further stated that the daughter Raina is supposed to be under the care
and custody of her mother who is remarried and prayed to dismiss the
Notice of Motion.
7. It appears defendant has not denied that applicant is the sister of
deceased plaintiff. Defendant has not denied specific allegations in para
1 of the Notice of Motion regarding that the original plaintiff died after
a prolonged illness and repeated hospitalization since the year 2013
and therefore, was not able to appear in the Suit. Defendant has not
produced anything on record to show that the Notice was served upon
plaintiff on transfer of the case from the Hon'ble High Court to City Civil
Court. Therefore, it appears the deceased plaintiff was ill and also did
not receive Notice about transfer of case from the Hon'ble High Court to
City Civil Court and therefore, it will be proper to condone delay in
filing Notice of Motion.
8. It is pertinent to see that applicant is sister of original plaintiff.
Applicant has produced true copy of alleged Last Will of the deceased
plaintiff in which it is stated in clause 2 that, “he is appointing the
applicant to be the executrix of the Last Will.” In the Last Will in clause 1
it is stated that, “the daughter Raina Shah, who is a citizen of the
-- 4 of 7 --
:5: N.M. No.1913/2019 in Sum. Suit No.5580/2007
Republic of Mauritius to be the beneficiary of the entire estate.” Therefore,
at this juncture on the basis of the true copy of the alleged Last Will of
deceased plaintiff and that the applicant is the sister of original plaintiff,
it appears prima facie applicant is having the right to proceed with the
Suit as executrix of the Last Will of deceased. Therefore, it will be
proper to allow applicant to proceed with the Suit.
9. Ld. Advocate for the applicant has cited judgment of the Hon'ble
Madras High Court in case of Shanmuga Sadachara Servai vs
Thirugnanam Servai And Anr., (1999) 2 MLJ 616, in which it is held
that, “in the absence of any materials to hold that there was negligence or
mala fide or deliberate intention, it cannot be presumed that the delay was
occasioned on account of negligence or mala fide.” In the case also there is
no materials to hold that there was negligence or mala fide or
deliberate intention to delay the proceedings by deceased plaintiff and
definitely plaintiff was not going to get any benefit by delaying the
matter. Therefore, this case law is squarely applicable to the case in
hand.
10. Ld. Advocate for the applicant cited another judgment of the
Hon'ble Apex Court in case of Davinder Pal Sehgal & Anr. Vs M/s
Pratap Steel Rolling Mills Pvt. Ltd. & Ors., Appeal (civil) 8503 of
2001 decided on 13.12.2001, in which it is held that, “merely because
in the order of trial court, specifically, there is no reference to petition for
condonation of delay, it cannot be said that it did not consider the same.
From a bare perusal of the order, it would appear that the grounds stated
in the restoration application for non appearance on 24th August, 1988 as
well as delay in filing the restoration application having found favour with
the trial court, the suit has been restored, therefore, it cannot be said that
-- 5 of 7 --
:6: N.M. No.1913/2019 in Sum. Suit No.5580/2007
the order of restoration has been passed without condoning the delay in
filing the restoration application.” In the case in hand also applicant has
stated grounds of condonation of delay in filing Notice of Motion and
grounds to allow Notice of Motion and both are considered to decide
the delay in filing Notice of Motion and in deciding the Notice of
Motion. As discussed above, the delay in filing Notice of Motion is
condoned and Notice of Motion deserves to be allowed.
11. As discussed above, considering the circumstances that the
original plaintiff since 2013 was suffering from prolonged illness and
died in the year 2019 and that the notice of transfer of Suit not served
on original plaintiff, it will be proper to condone delay in filing Notice
of Motion and as applicant is executrix of the last alleged Will of
deceased, it will be proper to allow applicant to proceed with the suit.
Hence, following Order:
ORDER
1. Notice of Motion No.1913 of 2019 is allowed in terms of prayer
clauses (a) and (b).
2. Notice of Motion No.1913 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 21.01.2020 City Civil Court,
Gr. Bombay.
Dictated on : 21.01.2020
Transcribed on : 21.01.2020
Signed on : 21.01.2020
-- 6 of 7 --
:7: N.M. No.1913/2019 in Sum. Suit No.5580/2007
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.01.2020 At 02:19 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
21.01.2020
Judgment/Order signed by P.O. on 21.01.2020
Judgment/Order uploaded on 24.01.2020
-- 7 of 7 --