Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion 1
No. 1933 of 2019
MHCC010053672019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1933 OF 2019.
IN
SHORT CAUSE SUIT No. 2578 of 2017.
Ms. Harmeet Yadwinder Bindra ….Defendant No.3/
Applicant.
In the matter of
Mr. Purshottam Behera. … Plaintiff.
V/s.
1. Shakti Natural Gas Pvt.Ltd & Ors. ...Defendants.
Appearance:
Adv. Mr. Sumit Mali for Plaintiff.
Adv. Mr. Jasmine Kaur for defendant.
CORAM : SMT. ASHWINI V. KASTURE.
JUDGE, (C.R.No.59)
DATE : 18th July , 2024.
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No. 1933 of 2019
ORDER
Defendant No.3 has taken out this Notice of Motion with a
prayer to set aside ‘No Written statement’ order dated 22.02.2019.
2. Inspite of giving sufficient chance to both parties,both
parties as well as their advocate failed to argue the Notice of Motion,
therefore, matter proceeded without hearing of argument of both
parties. Perused the Notice of Motion, supporting affidavit and affidavit
in reply filed by the plaintiff.
3. The defendant No.3 has contended in her affidavit in
support to Notice of Motion that she is a director of Defendant No.1-
Company and ‘No written statement’ order is passed on 22.02.2018
against her. She further contends that the present order needs to be set
aside on ground of equity as no chance of defence was provided to her
in view of fact that the matter has been made ex-parte even against
defendant No.1- Company of which he is a director. Due to oversight
and inability to produce the seal and stamps of Defendant No.1
Company the Vakalatnama could not be filed on the first date in the
matter and the matter was made ex-parte against defendant No.1,
without even providing a fair chance to her to secure the seal and
stamps of Defendant No.1. Thereafter, she immediately instructed his
advocate to take out appropriate application to set aside the Ex-parte
Order passed against defendant No.1 Thus, Notice of Motion No.885 of
2018 was filed promptly on the next date in the matter and thereafter,
her advocate was absorbed and occupied with conduct of the
proceedings in Notice of Motion No. 885 of 2018. It is pertinent to note
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No. 1933 of 2019
that, being the Director of Defendant No.1 it was imperative to have the
exparte order against the latter set aside as this order against defendant
No.1 would have severely prejudiced her case and the defence in the
present matter as well. She further contends that till the exparte order
against Defendant No. 1 would not have been set aside, she could not
have filed his written statement on record as the defences for both
herself and Defendant No. 1 are conjoint, codependent and inter-
reliant. Thus, to safeguard her own self in the present matter, it was
important to first secure the representation of Defendant No.1 in the
present matter. She further contends that the proceedings in Notice of
Motion No. 885 of 2018 commenced from26.02.2018 and continued till
22.02.2019 the date on which the Court has passed an order rejecting
the said Notice of Motion and also passed a ‘No Written Statement’
order against her. It is pertinent to note that the principal reason as to
why written statement was not filed by him before the Hon’ble Court in
the present matter is that being the Director of Defendant No.1 it was
first important to set-aside the exparte order against the said Defendant
so that on representing the Company, her defence as the Director of
Defendant No.1 would have been automatically safeguarded in the
present proceedings. However, to her disappointment the said ex-parte
order against defendant No.1 was upheld by this Hon’ble Court.
4. She further contends that now with the ‘No Written
Statement’ order passed against her, she has no fair and just chance to
represent herself before this Hon’ble Court even though she has a strong
case on merits. If she is unable to file her written statement before this
Hon’ble Court, she will be rendered completely defenceless merely
because of the fact that due to paucity of funds she was unable to prefer
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No. 1933 of 2019
appeal against the order dated 22.02.2019 rejecting the Notice of
Motion No. 885 of 2018 and thus, was unable to safeguard the interest
of both defendant No.1 and herself. If she is allowed to file her written
statement before this Hon’ble Court, it will also enable her to reflect the
case of defendant No.1 which is no manner whatsoever, owes any sort
of money to the plaintiff. Therefore, in the interest of equity and justice
one fair chance should also be provided to her i.e. defendant No.3 by
enabling her to represent herself before this Hon’ble Court. Lastly, she
prayed to allow present Notice of Motion.
5. The plaintiff filed his reply to the present Notice of Motion
along with affidavit in its support It is his contention that the Notice of
Motion is false, frivolous and concocted story is made by this Defendant
and therefore, it is not maintainable in law. He further contends that
the ex-parte order dated 31.01.2018 is already passed against this
present defendants for which they have carried out Notice of Motion
hearing No. 885 of 2018 which was also on false and frivolous grounds
and also after hearing both the parties, the same was rejected by this
Hon’ble Court on 22/02/2019 and ‘No Written Statement’ order passed
against the defendant No.3 and till date they have not filed appeal and
as per law the order should be challenge before the Hon’ble High Court
and not before this Hon’ble Court. He further contends that the matter
is proceeded exparte against present defendants No.1 and 3, hence
question of filing their written statement does not arises. Firstly they
have to set aside the exparte order. He further contends that the present
Notice of Motion and affidavit in support of Notice of Motion is not
maintainable and is liable to be dismissed with the heavy compensatory
cost.
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No. 1933 of 2019
6. Perused the Notice of Motion and its affidavit Also perused
the reply. The Ld advocate for both sides are absent and failed to argue.
The present Notice of Motion has been moved by Defendant No. 3 for
setting aside order dated 22.02.2019 i.e. No Written Statement Order.
On perusal of order dated 22.02.2019 it reveals that the said order is
passed on merit with observation that there is no substance to allow the
Notice of Motion. Under such circumstances, it would not proper to
reconsider the prayer of defendant No. 3 about the setting aside 'No
Written Statement' Order. Therefore, following order is passed: -
ORDER
Notice of Motion No. 1933 of 2019 is hereby rejected and
disposed off accordingly
(Ashwini V. Kasture. )
Judge,
City Civil and Sessions Court,
Date.:18.07.2024. Greater Bombay (CR 59).
Declared on : 18.07.2023.
Direct Typed on : 18.07.2023.
Checked on :22.07.2023.
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.07.2024 at 3.36 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SMT. A.V.KASTURE ,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.07.2024
Order signed by P.O. on 24.07.2024
order uploaded on 24.07.2024
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No. 1933 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.02.2023 at 3.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 03.02.2023
Order signed by P.O. on 16.02.2023
order uploaded on 16.02.2023
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