Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.18682018 ORDER 1
MHCC010060602018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1868 OF 2018
IN
SUMMARY SUIT NO.4918 OF 2008
(HIGH COURT SUIT NO.3294 OF 2008)
Veena Elesh Magdani … Plaintiff
Vs.
Meethrical Works And Ors … Defendants
Appearances:
Ld.Adv.Mr.A.A.Mukhri for plaintiff.
Ld.Adv.Ms.Kalpana Trivedi for Defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 1st December 2021
ORDER
1. This Notice of Motion is filed by defendants and requested to
condone the delay in the interest of justice and to set aside the exparte
order. It is the submission of defendants that the Court has granted him
leave to defend the suit unconditionally. The order was passed on
2/5/2017 and from the date of order it was boundand for defendants to
file Written Statement on record. But thereafter the defendant no.4 who
has deposed before the Court was busy in the marriage of his daughter.
However, their advocates changed the address of the office and
residence, therefore, the defendants could not communicate with him.
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NM No.18682018 ORDER 2
Accordingly, further necessary adverse orders are passed against
defendants. On 19/1/2018 the defendant no.4 was personally present
in the Court but the court has passed exparte judgment and Court has
not granted any permission to him to submit the submissions.
2. The plaintiff by filing reply denied all the contents of Notice of
Motion and it is the submission of plaintiff that this Notice of Motion is
filed just to delay the execution and to drag down the matter.
3. In the original suit there are five defendants. The defendant no.4
came with Notice of Motion on behalf of all defendants and requested
to restore the suit by setting aside exparte judgment dated 19/1/2018.
It is the submission of defendant no.4 that on 19/1/2018, he was
present before the Court and requested the Court for time even though
exparte judgment is passed. On perusal of Roznama dated 19/1/2018
his appearance is not marked on record. Therefore, there is no
substance in the submission of defendant no.4 to show that on
19/1/2018 he was present. However, if it was the fact then he would
have moved application on the same day. The Roznama dated
02/05/2017 disclosed that the defendants were permitted to defend the
suit unconditionally and from there it was boundand to them to file
Written Statement but till 30/6/2017 they have not filed Written
Statement. Therefore, no written Statement order is passed against
them. From 30/6/2017 till exparte judgment, no one had appeared
from the side of defendants. It is the submission of defendant no.4 that
he was busy in the marriage of his daughter. For the sake of moment
this fact can be considered but there is no explanation from the side of
other defendant why they have not appeared on record. It is their
submission that advocate of defendants changed his residence as well as
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NM No.18682018 ORDER 3
office address, therefore, defendant could not contact him. Being
advocate he used to appear in the Court though he may have changed
his residence and office. However, in today's trend mobile facility is also
available, they would have contacted him on mobile phone. Therefore,
this submission is also not acceptable. Exparte Judgment is passed on
19/1/2018 and on 3/5/2018 the defendants filed this Notice of Motion
with request to set aside exparte Judgment. The defendants are willing
to contest suit on merit. Prima facie delay is caused because of
negligence of defendants. That needs to be compensated.
4. The plaintiff has filed suit against the defendants for recovery of
Rs.10,42,299.81ps. Considering the claim of the plaintiff it is necessary
to grant liberty to defendants to contest the suit but for causing delay
the defendants would have to compensate to the plaintiff. Accordingly,
following order is passed:
ORDER
1. Notice of Motion no.1868 of 2018 is allowed subject
to costs of Rs.10,000/ to the plaintiff.
2. The defendants are directed to pay the costs within
one month from the date of this order.
3. If defendants fail to pay the costs within one month
then the matter can not be restored.
4. Notice of Motion No.1868 of 2018 stands disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 01/12/2021 City Civil Court, Gr. Bombay
Dictated on : 01/12/2021,
Transcribed on : 03/12/2021,
HHJ signed on : 06/12/2021
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NM No.18682018 ORDER 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06/12/2021 5.40p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
01/12/2021
JUDGEMENT /ORDER signed by P.O. on 06/12/2021
JUDGEMENT /ORDER uploaded on 06/12/2021
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