Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1972 OF 2019
(CNR NO. MH CC010054702019)
IN
SUMMARY SUIT NO.459 OF 2017
Deepak K. Mehta ....Plaintiff
V/s.
Dt. Sadiwala's Clinic & Nursing Home & Ors. ...Defendants
Appearance:
Ms. Pooja Rathod, Advocate for Plaintiff.
Mr. Kevin Gala, Advocate for Defendants.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.40)
DATE : 19th August, 2019.
ORDER
1. By this Notice of Motion defendants are seeking permission
to set aside the order dated 20.02.2019, directing the suit to proceed
without written statement of defendants and for setting aside the order
dated 25.04.2019 directing the suit to proceed exparte.
2. To this application no reply is filed by the plaintiff.
Perused the record. Heard both the sides.
3. It appears from the record that vide order dated
09.01.2019 in Summons for Judgment No.133/2017 conditional leave
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was granted to the defendants on depositing amount of Rs.10,00,000/
jointly in the court within four weeks from the date of order. On
perusal of record it reflects that till 20.02.2019 as the said order was
not complied with, no written statement order was passed against
defendants. On 29.03.2019, learned Advocate for defendants made
submission before the Court that they have preferred Civil Revision
Application No.242/2019 before the Hon'ble High Court, which is
pending challenging order dated 09.01.2019 passed in Summons for
Judgment. It is pertinent to note that till today the defendants have not
complied the order dated 09.01.2019 nor there is any stay granted by
the Hon'ble High Court against the said order.
4. Learned Advocate for the defendants vehemently submitted
that the defendants were under bonafide impression that the matter
had been adjourned to 29.04.2019. However, it appears that the
matter was listed on 25.04.2019. On 25.04.2019, none appeared on
behalf of defendants and accordingly the predecessor Court passed an
order directing the suit to proceed exparte against the defendants. It is
further submitted that the Civil Revision Application No.242/2019 is
pending before the Hon'ble High Court challenging order dated
09.01.2019 and therefore the defendants have not deposited the
amount as directed in the said order.
5. On the other hand, learned Advocate for plaintiff submitted
that due to failure of defendant to deposit the amount as per the
direction in the order dated 09.01.2019, the suit proceeded exparte
and it is kept for final argument. Therefore, according to learned
Advocate of plaintiff defendants have no right at this stage, without
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depositing the amount as directed in the order dated 09.01.2019 to
submit Notice of Motion. Accordingly, it is prayed that the Notice of
Motion may kindly be dismissed with cost.
6. On perusal of record, it shows that since the defendants
have not complied the order dated 09.01.2019 of depositing the
amount of Rs.10,00,000/, the suit was proceeded without written
statement of defendant. It is also the submission on behalf of
defendants that they have challenged the order dated 09.01.2019
passed in Summons for Judgment before Hon'ble High Court. Till
today there is no stay granted to the said order. However, considering
the contention of defendants that the matter was transferred from one
court to another court and the mistake of Junior Advocate in recording
next date, I am of the opinion that the litigant should not suffer by the
mistake of Advocate. So also, in order to resolve the controversy
between both the parties on merit, the application needs favourable
consideration but the other side should be compensated sufficiently for
the delay caused on behalf of defendants. Accordingly, I pass following
order.
ORDER
1. Notice of Motion No.1972/2019, is hereby allowed subject
to cost of Rs.5,000/ (Rs. Five Thousand Only) to be paid on or before
next date.
2. Defendants shall comply the order dated 09.01.2019 of
depositing the amount alongwith the written statement on or before
30.08.2019 without fail.
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3. After compliance as noted above, the order dated
20.02.2019 and 25.04.2019 are set aside.
4. Accordingly, Notice of Motion No.1972/2019 is disposed
off.
(Jayshri R. Pulate)
Adhoc Judge
City Civil Court,
Gr. Bombay
Date : 19/08/2019
Dictated on : 19.08.2019
Transcribed on : 20.08.2019
Signed on : 20.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
22.08.2019 3.05 p.m. Ms. Ujwala J. Bhagat
Name of the Judge H.H.J. Jayshri R. Pulate.
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 19.08.2019
Order signed by P.O. on 20.08.2019
Order uploaded on 22.08.2019
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