Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010061892019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2254 of 2019.
IN
S. C. SUIT NO. 1064 of 2019.
Dr. Anantkumar L. Gore ...Applicant.
/Plaintiff.
In the matter of :
Dr. Anantkumar L. Gore .. Plaintiff
V/s.
Jayantilal P. Desai .. Defendant
Appearances :
Adv. Ajay Mistry for plaintiff.
Defendant in person.
Coram : Shri. S.B. Pawar, Judge.
CR No. : 59.
Date : 27.02.2013.
ORDER
The plaintiff has taken out this Notice of Motion with a
-- 1 of 5 --
2
prayer to direct the defendant to deposit an amount of Rs.75,800/ in
the Court.
2. It is the case of the plaintiff that the suit has been filed for
directions to the defendant to perform his obligation towards the
plaintiff by paying him the balance outstanding fee of Rs.35,000 till
18/03/2019 with interest at 12% p.a. aggregating to Rs.75,800/ plus
additional interest from 19/03/2019 till the date of payment.
3. The plaintiff is a practicing Advocate. He has contended
that defendant approached him in August 2008 with the request to file
Writ Petition in the Bombay High Court against his employers for
complying with the order dated 07/12/1995 by Ld. Presiding Officer of
the Labour Court. Initially the plaintiff was reluctant but after much
persuasion by the defendant, the plaintiff agreed and filed Writ Petition
No.944 of 2009. However, lateron it was withdrawn by the consent of
the defendant. The defendant had paid Rs.15,000/ as advance and
assured to pay balance amount of Rs.35,000/.
4. It is further the case of the plaintiff that the defendant did
not keep his word to make the balance payment. On the contrary, he
filed complaint against the plaintiff before District Consumer Disputes
Redressal Forum, Bandra, Mumbai bearing No.452 of 2011. It is
dismissed. The defendant is liable to pay the outstanding amount of
Rs.35,000/ along with simple interest at 12% p.a. from the date of
invoice i.e. 03/06/2009 till 18/03/2019. Accordingly, it is prayed that
during pendency of the suit, order be passed directing the defendant to
-- 2 of 5 --
3
deposit the amount in the Court.
5. The defendant appeared in person and filed affidavit in
reply. He defended the Notice of Motion on the ground that the Hon’ble
Supreme Court has given stay order in the matters connecting
Advocates in Consumer Forum and that stay order has not been lifted.
Therefore, this Court has no jurisdiction. The plaintiffAdvocate is
liable to pay Rs. 1 lakh as compensation for filing this suit and for
giving mental harassment and torture. The complaint against plaintiff
Advocate cannot run in two Courts, Consumer Forum and this Court.
This Court has no jurisdiction to hear the suit. Ultimately, he prayed to
reject the suit with maximum financial cost
6. Heard Ld. advocate for the plaintiff. Defendant did not
appear when the matter was for argument on Notice of Motion.
Therefore, his argument is dispensed with and the Notice of Motion is
taken for decision.
7. Perused affidavit in support of the Notice of Motion,
affidavit in reply and pleadings on the record. The suit has been filed
by the plaintiff for recovery of his professional fees amounting to
Rs.35,000/ with interest. The documents on record show that the
defendant had engaged the services of the plaintiff for filing writ
petition before the Hon’ble Bombay High Court and said writ petition,
as is evident from the order dated 20/03/2009, is withdrawn on the
prayer of the plaintiff Advocate, representing the defendant.
-- 3 of 5 --
4
8. The bone of contention between the parties is that the
advocate is complaining that despite of receiving services defendant
failed to pay the balance amount of professional fees agreed between
them, whereas defendant has complained of deficiency in services from
the plaintiff. The documents further show that defendant had
approached the Consumer Disputes Redressal Forum by filing complaint
case No.452 of 2011 complaining deficiency in services for refund of
fees, compensation for mental harassment and also for cost of the
litigation. The said complaint is dismissed vide order dated
06/11/2018. The defendant is claiming that the said order is stayed by
the Hon’ble Supreme Court. However, nothing is brought on record in
support of the said contention.
9. The plaintiff has annexed details of fees showing Rs.35,000/
as balance payable as on 30/06/2009. The defendant is disputing his
liability. On the contrary, he is claiming compensation from the
plaintiff. In these circumstances, when triable issues are involved in the
suit, final hearing is essential to decide the alleged liability of the
defendant. In my view, the direction sought in the present Notice of
Motion can be given only in the event decree is passed in favour of the
plaintiff. No circumstances are brought on record to pass any order
against the defendant under Order XXXVIII Rule 1 of CPC. Moreover,
the issue of limitation also seems to be attracted. In these
circumstances, it will not be just and proper to pass any order at this
premature stage. No case is made out by the plaintiff to grant the relief
prayed in the Notice of Motion. The Notice of Motion deserves to be the
rejected. Therefore, following order is passed :
-- 4 of 5 --
5
ORDER
1. Notice of Motion No. 2254 of 2019 is rejected with costs.
2. Notice of Motion No. 2254 of 2019 is disposed of accordingly.
(S.B. Pawar)
Judge,
Dated : 27.02.2023 City Civil and Sessions Court,
Greater Bombay (CR 59).
Dictated on : 27.02.2023
Typed on : 27.02.2023
Checked on :28.02.2023
Signed on : 04.03.2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
30.03.2023 at 4.00 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 24.02.2023
Order signed by P.O. on 04.03.2023
order uploaded on 30.03.2023
-- 5 of 5 --