Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1845/18 in SU No.2902/16
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1845 OF 2018
(CNR NO. MH CC010059642018)
IN
S.C.SUIT NO. 2902 OF 2016
(CNR NO. MH CC0101153820016)
Halma India Private Limited. ... Plaintiff
Versus
Kuniyur Janardhanan Srinivasan ... Defendant
Adv. Mr. Aviral Sahai alongwith Ms. Sanika Gokhale,
i/b Cyril Amarchand Mangaldas for the Plaintiff.
Adv. Mr. Anirban Roy i/b Roy law firm for Defendant.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 4th JANUARY, 2019
O R D E R
1. This Notice of Motion has been taken out by the defendant
for setting aside no Written Statement order dated 17.01.2018 and no
reply order to Notice of Motion no. 381 of 2017.
2. The defendant has filed affidavit in support of the notice of
motion, wherein he has stated that on 17.01.2018, the court has passed
order for proceeding of the suit and notice of motion, without written
statement on 27.10.2016, suit was filed by the plaintiff and writ of
summons were served upon the defendants on 6.02.2017. Adv for the
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plaintiff by their letter dated 2.02.2017 had served, as copy of the suit
and notice of motion for adinterim reliefs which was returnable on
6.03.2017. On 6.03.2017, vakalatnama of the advocate for the
defendants was taken on record and matter was adjourned to
4.04.2017. On perusal of the suit, the defendant and his advocate felt
that the suit does not reveal any cause of action and the same should be
dismissed. The defendant wanted to file an application that effect on
next date. However on both dates i.e on 4.04.2017 and 25.04.2017, the
board was discharged and the matter was adjourned to 10.07.2017. On
10.07.2017 also the board was discharged, but the defendant made
formal application for rejection of the plaint under Order7, Rule11 of
The Code of Civil Procedure or in the alternative for stay of present suit
Under Section 10 of the Code of Civil Procedure or in the alternative
clubbing of the present suit with suit no. 4455 of 2013 pending before
C. R. No. 3. Said application was taken on record, the defendant was/ is
of the view that the said application exh.3 is be heard before further
proceeding with the suit, as the same goes to the root of the matter. In
the meanwhile, the plaintiff filed notice of motion no. 381 of 2017 by
precipe on 17.07.2017. The defendant filed his reply on 14.07.2017. At
that point of time, the defendant has annexed copy of exh. 3 to the
reply of the said notice of motion. Thereafter, notice of motion was
argued on 17.07.2017, adinterim relief was granted in favour of the
plaintiff.
3. The defendant before filing written statement of the suit or
reply to notice of motion wanted the said application exh. 3 be heard
first and decided. The defendant did not file his reply or written
statement in the suit in view of preliminary objection vide exh. 3. The
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defendant's advocate was present and all the subsequent date i.e on
27.07.2017 and 29.09.2017. On next adjourned date on 17.01.2018,
the defendant could not attend the court due to food poisoning to her.
Office Clerk of the advocate was same the informed the court and to
seek a short date. Accordingly the clerk was present and informed the
situation and made request of adjournment. The court refused to take
cognizance of the appearance of Mr. Pramod Pandey and proceeded to
pass the order dated 17.01.2018
4. Defendant and Advocate for the defendant have been
diligently following the matter. Advocate for the defendant an advised
the defendant that written statement may not be filed before the
application made by the defendant be heard and decided first. It was
incumbent upon the court to hear and decide the said application first,
however the court heard the application of the plaintiff in the notice of
motion before the application for defendant was heard. Had the
application of the defendant been heard and been decided in the
affirmative, the suit itself could have got dismissed.
5. The defendant undertakes that there is particular time limit
for filing written statement and reply too has to be filed within a
reasonable time. However in the light of stand taken by the defendant,
the defendant choose not to file written statement and wait for out
come of the application. The advocate for the defendant infact was on
her way to court for arguments on the said application of the defendant.
However due to sudden illness, she could not reach the court. Thus
prayed for hearing on exh. 3 first and allowing the defendant to file
written statement and reply to notice of motion by condoning delay
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caused. Hence prayed for allowing notice of motion.
6. Authorized signatory of the plaintiff Mahadev Dhuri has
filed reply affidavit and denied every allegations made in the notice of
motion. It is contended that notice of motion is frivolous and not
tenable. It is contended that suit was filed on 27.10.2016 for recovery of
confidential information of the plaintiff company and properties owned
by the plaintiff, pursuant to termination of defendant's services on
18.11.2013. Pursuant to the legal termination of the defendant's
services, the defendant refused to return any of the properties owned by
the plaintiff. Suit is pending since 2016 and the defendants remains in
continued possession of properties of the company being a car, mobile
phones, laptop and data card. The defendant has made every attempt to
delay the proceedings and the conduct of the defendant shows malafide
on his part.
7. It is further contended that on 13.07.2017 advocate for the
defendant sough time and short adjournment was granted till
14.07.2017. The defendant tendered preliminary reply to notice of
motion and on 17.07.2017 notice of motion of the plaintiff for ad
interim relief was allowed and directions were given to the defendant,
to file his reply affidavit on or before 28.07.2017. On 17.01.2018, when
the matter was called out the advocate for the defendant was not
present and the court has passed the order that the matter would
proceed without defendant's reply to notice of motion and written
statement.
8. It is further contended that the writ of summons was
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service upon the defendant on 6.02.2017. Now the defendant claims
that the Written Statement has not been filed, as the defendant has filed
an application for rejection of the suit on 10.07.2017, under Order7
Rule11 of The Code of Civil Procedure. Filing of the application for
rejection does not preclude the defendant for filing the written
statement. Several chances were given to the defendant to file reply to
notice of motion. Inspite of directions to file reply, not later than
28.07.2017, the defendant did not comply with the directions of the
court till 17.01.2018. the defendant has repeatedly attempted to delay
the progress of the suit.
9. It is further contended that company owned properties
were provided to the defendant by virtue of his employment with the
plaintiff company and the defendant is under an obligation to return the
company owned properties when demanded. The defendant has filed
several frivolous and baseless suit and criminal proceedings against the
plaintiff for harassing the plaintiff and employees of the plaintiff. The
defendant has abused the judicial process. It is further contended that
the defendant has been deliberately delay in prosecution in the present
suit for an extended period of time and the relief sought by the
defendant, if allowed will further delay the suit, present notice of
motion is liable to be dismissed.
10. It is further contended that the fact of board being
discharged did not preclude the defendant for filing the notice of
motion. Further filing of application for rejection does not entitle the
defendant to not file written statement or reply. The defendant had
nearly 7 months failed to file reply and written statement at the time of
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hearing on 17.01.2018, nobody appeared on behalf of the defendant
and the court has passed the orders. The plaintiff has denied contents of
affidavit in support of notice of motion and prayed for dismissal of
notice of motion with costs.
11. Heard learned advocate for the defendant and the learned
advocate for the plaintiff. Perused roznama. It appears that on
10.06.2017, the defendant has filed application for rejection of the
plaint vide Exh.3. On 21.09.2017, the plaintiff has tendered reply to
the said application. Thereafter, on 17.01.2018, it appears that the
Court has passed no reply to notice of motion and no written statement
order. Thereafter, by precipe on 22.03.2018, the defendant has taken
out the present notice of motion.
12. It appears that the application of defendant vide Exh.3 for
rejection of the plaint and for other reliefs is pending for its hearing and
decision. The learned advocate for the plaintiff has placed his reliance
in Writ Petition No.9357 of 2013. Her Lordship has observed in
paragraph no.6 as under;
“The provisions of the Bombay City Civil Court
Rules and the procedure prescribed therein are
expected to be followed by the litigants, lawyers
and the Courts alike. There can no exception to
that. It is strange that the advocates for
respondent no.3, who ought to have know the
procedure under the Bombay City Civil Court
Rules filed the application at Exhibit28. Even if
the advocates or the parties were to make a
mistake and file such an application, it was the
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duty of the concerned court to guide the
advocates and the litigants by directing them to
file an application in proper format.”
13. Thus, it appears that the defendant has not followed the
rules of the Bombay City Civil Court and therefore, it seems that
Exhibit3 application is not maintainable in the present form. The
plaintiff has sought relief in respect of Exh. 3 also in the month vide
prayer clause (d). Thus, in view of above directions, application Exh. 3
is to be disposed of as not maintainable in the present form. Therefore,
the plaintiff is not entitled for relief clause (d) of this notice of motion.
14. So far other reliefs are concerned, according to the
defendant, he did not file reply or written statement due to pending
Exhibit3 application. According to the defendant, he has filed reply for
opposing grant of adinterim relief on 14.07.2017. It seems that on
17.07.2017, the Court has passed adinterim order in Notice of Motion
No.381/2017.
15. According to the plaintiff, basically, Exhibit3 application is
not tenable as in view of Bombay, City Civil Court rules. It is just one of
the conduct of the defendant to cause delay in the suit. It is urged by
the learned advocate for the plaintiff that the defendant is in the
possession of the company owned properties, being a car, mobile
phones, laptop and data card and suit subject is in respect of recovery of
the company owned properties alongwith other reliefs.
16. It appears that the defendant has taken stands that Exhibit
3 application was to be heard first and decided. On subsequent next
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two dates the board was discharged. Further, the defendant has stated
reason for nonappearance of his advocate on 17.01.2018 in affidavit in
support of notice of motion, wherein he has submitted that his advocate
suddenly fell ill due to food poisoning, hence could not attend the
Court.. His advocate informed regarding the same to him, however, the
defendant was far away from the Court premises and could not have
reached Court at 2.45 p.m.
17. Further, it is stated by the defendant that his advocate has
managed to send her office clerk Mr. Pramod Pandey to inform the
Court about the situation, so that the Court postpone the matter for a
further short date. Accordingly, Mr. Pramod Pandey, the Clerk of the
advocate for the defendant, remained present in the Court and
informed the situation and requested to adjourn the matter. However,
the Court refused to take cognizance of the appearance of Mr. Pramod
Pandey and proceeded to pass the order dated 17.01.2018.
18. No doubt though Exhibit3 in the form of application is not
maintainable, but the Court has not passed order below Exhibit3 and
proceeded further to pass order on 17.01.2018. Further, the defendant
has disclosed reason for nonappearance of his advocate and his
nonappearance before the Court. Besides, further the defendant had
made disclosure that the advocate's clerk was present, but the Court has
not taken his cognizance.
19. In the above circumstances, in the interest of justice, delay
caused in filing written statement and reply to the notice of motion, is
to be condoned by setting aside order dated 17.01.2018. Considering
the conduct of the defendant and nature of the suit, it is just and proper
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to impose heavy costs upon the defendant, while allowing the present
notice of motion in terms of prayer clause (a) to (c). As discussed above
the plaintiff is not entitled for relief in terms of prayer clause (d).
20. In the light of my above discussion, this notice of motion is
to be partly made absolute subject to the payment of costs of
Rs.15,000/ payable by the defendant to the plaintiff. With this, I
proceed to pass the following order:
O R D E R
1. Notice of Motion No. 1845 of 2018 is partly made absolute in
terms of prayer clause (a) to (c), subject to the payment of costs
of Rs. 15,000/ payable by the defendant to the plaintiff on or
before next date.
2. On payment of costs, the defendant is directed to file reply to
Notice of Motion no. 381/2017 and Written Statement without
fail, on or before next date.
3. Failure to make compliance, this notice of motion stands
dismissed automatically.
4. Exh. 3 application stands disposed of.
5. Notice of Motion no. 1845 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 04/01/2019. City Civil Court,
Gr. Bombay.
Dictated on : 04/01/2019
Transcribed on : 04/01/2019
Signed on : 05/01/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/01/2019 At 5.40 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
04/01/2019
Judgment/Order signed by P.O. on 05/01/2019
Judgment/Order uploaded on 05/01/2019
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