Date: 29-06-2019
Business: Adv. Charles D\''mello for Plaintiff present.
Adv. Tahir Prande for Defendant no.1 present.
Adv. Vinod Motkare for Defendant no.2 present.
K.B.
L.O.
Plaintiff is present.
Plaintiff tendered original NM No.2267/19 t.o.r.
Application filed by Adv for Plaintiff for extension of time to carry out amendment t.o.r.
One week time is granted to carry out amendment.
Adj for NM reply to 16.08.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 16-08-2019
Date: 16-08-2019
Business: Adv. Charles D\''mello for plff present.
Adv. Tahir Prande for defendant no.1 present.
Adv. Vinod Motkare for defendant no.2 present.
Copy of plaint and NM are given to Adv for defendant no.2.
Copy of amended plaint has been served upon defendants.
Adv for defendant sought time to file reply.
Time is granted.
Adj for NM reply to 30.09.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-09-2019
Date: 30-09-2019
Business: None for Plaintiff
Adv. Motaghare for defendant no 2 present.
Reply filed by defendant no 2 t.o.r.He also filed application to file copy of power of attorney on record. t.o.r.
Application is allowed.
Adjd. To 1.11.2019 for direction.
LO
Adv. Charles D\''mello for plaintiff present.
Already adjourned to 01.11.2019.
Next Purpose: DIRECTIONS
Next Hearing Date: 01-11-2019
Date: 01-11-2019
Business: Adv. D\''mello for plaintiff present.
Adv. Tahir Parnade for defendant No.1 present.
Adv. Motghare for defendant No.2 present.
He tendered register NM No.3823/2019.
Say given by the advocate for plaintiff to the NM.
Heard both sides.
ORDER PASSED BELOW NOTICE OF MOTION NO.3823/2019
Perused notice of motion, affidavit in support of it, reply of plaintiff. Heard respective counsel for parties.
Notice of Motion is taken out by defendant No.2 to condone delay caused in filing written statement and to take the same on record. It is the contention of defendant No.2 that, plaintiff has supplied copy of plaintiff on 16.08.2019 and therefore he came with written statement on fix date i.e. 30.09.2019. However, due to lack of knowledge he has not taken out notice of motion for filing the same and because of which delay has been caused which is not intentional and deliberate. Accordingly, he has made prayer in above terms.
Plaintiff objected to notice of motion, submitted that she leave it to the Court and further contended that in case if it is allowed then costs be imposed.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
On perusal of roznama it is apparent that defendant No.2 appeared through his advocate on 03.04.2019. But copy of amended plaint has been served upon defendant No.2 on 16.08.2019. Keeping in view above facts and that, delay caused is not inordinate and deliberate, in the interest of justice and fair trial I am inclined to condone the delay caused in filing written statement by defendant No.2. Further, defendant No.2 has annexed written statement to draft notice of motion which shows bona fide on his part and that, he does not want to delay the matter. Therefore, too, it is just to allow draft notice of motion subject to payment of certain costs. Hence, pass following order
ORDER
1. Notice of Motion No.3823 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- (Rupees one thousand only) to plaintiff within period of one week from the date of this order.
Defendant No.2 is at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.2 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Defendant No.2 paid the costs to advocate for plaintiff.
Advocate for plaintiff received the costs on behalf of plaintiff.
Exh.4 Written statement filed by defendant No.2
Advocate for defendant No.1 sought time to file reply to notice of motion No.2267/2019 Time is granted as last chance to file reply.
Adjourned for NM reply to 25.11.2019
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 25-11-2019
Date: 25-11-2019
Business: Adv. Asma Asnari h/f Adv. Dmello for plaintiff present.
Adv. Mothghare for defendant No.2 present.
None present for defendant No.1.
Reply not filed by defendant No.1 to NM 2267 of 2019. Therefore, notice of motion No.2267/2019 is to proceed without reply against defendant No.1.
Matter is adjourned for NM hearing to 11.12.2019
Next Purpose: NM FOR HEARING
Next Hearing Date: 11-12-2019
Date: 11-12-2019
Business: None present.
In the interest of justice matter is adjourned for NM hearing in default for order.
Adjourned to 18.01.2020 for hearing.
LO
Adv. Tahil Parande for defendant no 1 present and tendered 2 draft NM.
O- Leave granted to register it.
Copy be served upon other side.
Adjourned for service to 18.01.2020
Next Purpose: SERVICE
Next Hearing Date: 18-01-2020
Date: 18-01-2020
Business: Adv. Char\''s D\''Mellow for plaintiff present.
Adv. Sahil Parande for defendant No. 1 present.
He tendered registered NM Nos.4813 and 4814/19 t.o.r.
Adv. Vinod Motghare for defendant No. 2 present.
Reply filed by plaintiff on both above referred notice of motions itself.
Heard both sides on notice of motions
KB
LO
Order passed below notice of motion No.4813 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff and roznama of proceeding. Heard respective counsel for parties.
Present notice of motion is taken out by the defendant No.1 for condoning delay caused in filing written statement and to take the same on record.
It is contended that plaintiff had filed suit No.3336 of 2018 mentioning incorrect name of defendant No.1 and thereafter she took out chamber summons No.704 of 2019 for correcting the name which was allowed and amended copy of the plaint was served upon defendant No.1 in Court on 16.08.2019. It is further contended that legal representative of defendant No.1 company due to ill-health and subsequent death of his father was not attending office therefore written statement was not drafted during the period from 16.08.2019 to 26.11.2019. Delay caused in filing written statement is not deliberate but on account of circumstances beyond the control of defendant No.1. Accordingly, they prayed in above terms.
Plaintiff opposed notice of motion on the count that no ground is made out for condoning delay.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
On perusal of roznama it is clear that Chamber Summons No.704 of 2019 to correct the name of defendant No.1 was allowed on 15.03.2019. However, plaintiff carried out said amendment on 29.06.2019 and served the amended copy of plaint upon defendant No.1 only on 16.08.2019. Considering above facts and reasons assigned by defendant No.1, in the interest of justice and fair trial it is unjust to deprive defendant No.1 from contesting the matter on merits. Therefore, I am inclined to allow present notice of motion subject to costs. Hence, pass following order-
ORDER
1. Notice of Motion No.4813 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.2000/- (Rupees Two Thousand only) to the plaintiff within period of two weeks from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to plaintiff in the Court.
2. After payment of costs, written statement of defendant No.1 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Order passed below notice of motion No.4814 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff and roznama of proceeding. Heard respective counsel for parties.
Present notice of motion is taken out by defendant No.1 for setting aside order dated 25.11.2019 passed in Notice of Motion No.2267 of 2019 and permit them to file reply and also to hear and decide Notice of Motion No.2267 of 2019 on merits.
It is contended by partner of defendant No.1 that on 25.11.2019 he had instructed his advocate to file written statement and that, same should be treated as reply to notice of motion No.2267 of 2019. Said written statement was affirmed on same date however before the concerned person could reach this Court matter was called out and impugned order was passed. In above facts and circumstances defendant No.1 made prayer in above terms
Plaintiff opposed notice of motion on the count that no ground is made out to allow notice of motion.
On perusal of roznama it is clear that plaintiff has tendered registered notice of motion No.2267 of 2019 on 29.06.2019 and served the copy of amended plaint upon defendant No.1 on 16.08.2019. On 01.11.2019, last chance was granted to defendant No.1 to file reply to said notice of motion. But, on 25.11.2019, none present on behalf of defendant No.1 and reply was not filed by them so said notice of motion was proceeded without reply against defendant No.1. There are lapses on the part of representative of defendant No.1. But, in the interest of justice and fair trial I am inclined to grant an opportunity to defendant No.1 to contest the said notice of motion No.2267 of 2019 on merits. Therefore, notice of motion deserves to be allowed subject to costs. Hence, pass following order-
ORDER
1. Notice of Motion No.4814 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.2000/- (Rupees Two Thousand only) to the plaintiff within period of two weeks from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to plaintiff in the Court.
2. After payment of costs, reply of defendant No.1 be taken on record.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 14.02.2020
Next Purpose: DIRECTIONS
Next Hearing Date: 14-02-2020
Date: 14-02-2020
Business: Adv Charls Demolo for plff present.
Adv Neha Yadav for deft no. 2 present.
Matter stands Adj for NM hearing to 18/03/2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 18-03-2020
Date: 18-03-2020
Business: Adv Sameer Choulankar for plff present.
Matter stands Adj for NM hearing to 23/04/2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 23-04-2020
Date: 23-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 14-05-2020
Date: 23-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 14-05-2020
Date: 14-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-06-2020
Date: 14-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-06-2020
Date: 03-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-06-2020
Date: 03-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-06-2020
Date: 20-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-08-2020
Date: 20-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-08-2020
Date: 20-08-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 30-09-2020
Date: 30-09-2020
Business: None present.
Adjd to 12.11.2020 for NM Hearing
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-11-2020
Date: 30-09-2020
Business: None present.
Adjd to 12.11.2020 for NM Hearing
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-11-2020
Date: 12-11-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-01-2021
Date: 12-01-2021
Business: None present.
Matter stands Adj for NM Hearing to 20/02/2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-02-2021
Date: 20-02-2021
Business: Adv Khan for plff present.
Adv. D. R. Motbhare for deft no. 2 present.
adv for plff seeks time for hearing of NM. Granted as last chance.
Matter stands Adj for NM Hearing to 10.03.2021
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-03-2021
Date: 20-02-2021
Business: Adv Khan for plff present.
Adv. D. R. Motbhare for deft no. 2 present.
adv for plff seeks time for hearing of NM. Granted as last chance.
Matter stands Adj for NM Hearing to 10.03.2021
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-03-2021
Date: 10-03-2021
Business: Adv Charles Dmello for plff present.
Adv D. R. Motghare for deft no. 2 present.
Heard both parties.
Matter stands Adj for NM Order to 23/03/2021.
Next Purpose: NM ORDERS
Next Hearing Date: 23-03-2021
Date: 23-03-2021
Business: P. O. is on Leave.
Next Purpose: NM ORDERS
Next Hearing Date: 12-04-2021
Date: 12-04-2021
Business: As Holiday declared as per office order 78/2021. Due to covid matter adjourned.
Next Purpose: NM ORDERS
Next Hearing Date: 26-04-2021
Date: 12-04-2021
Business: As Holiday declared as per office order 78/2021. Due to covid matter adjourned.
Next Purpose: NM ORDERS
Next Hearing Date: 26-04-2021
Date: 26-04-2021
Business: None present.
As court is busy in dictating order in adoption matter ,
adjd to 07.05.2021 for order.
Next Purpose: NM ORDERS
Next Hearing Date: 07-05-2021
Date: 26-04-2021
Business: None present.
As court is busy in dictating order in adoption matter ,
adjd to 07.05.2021 for order.
Next Purpose: NM ORDERS
Next Hearing Date: 07-05-2021
Date: 07-05-2021
Business: Due to Covid-19
Matter Adjd.
Next Purpose: NM ORDERS
Next Hearing Date: 10-05-2021
Date: 07-05-2021
Business: Due to Covid-19
Matter Adjd.
Next Purpose: NM ORDERS
Next Hearing Date: 10-05-2021
Date: 10-05-2021
Business: None present.
Matter stands Adj for NM Order to 07/06/2021.
Next Purpose: NM ORDERS
Next Hearing Date: 07-06-2021
Date: 07-06-2021
Business: Due to covid matter is adjd.
Next Purpose: NM ORDERS
Next Hearing Date: 16-06-2021
Date: 16-06-2021
Business: Due to Covid-19, matter adjd.
Next Purpose: NM ORDERS
Next Hearing Date: 29-07-2021
Date: 29-07-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM ORDERS
Next Hearing Date: 03-08-2021
Date: 03-08-2021
Business: Plff and her Adv absent.
Deft no. 1 and its Adv absent.
Adv Priyanka Tiwari i/b Vinod Motkare for deft no. 2 present.
F. R. S. R. following order is passed -
ORDER
(1) Notice of Motion No. 2267 /2019 is partly allowed.
(2) Defendant no. 1 is restrained from creating third party interest in the suit flat and surrendering the suit flat to defendant no. 2.
(3) If plaintiff and defendant no. 2 failed to arrive at settlement about how to pay the balance consideration to defendant no. 1, they shall jointly pay balance consideration of both flats to defendant no.1 as per would be registered agreements for sale.
(4) Defendant no. 1 is directed to execute registered agreement for sale of both flats in favor of plaintiff and defendant no. 2 jointly or as per settlement between plaintiff and defendant no. 2 within one month of the communications received from plaintiff and defendant no. 2.
(5) Prayer clause ( c) and (d) of the notice of motion is rejected at this stage.
(6) Costs shall follow the event.
(7) Notice of motion no. 2267 of 2019 is disposed of.
Nature Of Disposal: ALLOWED
Disposal Date: 03-08-2021