Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 2296-2019 in
Suit No. 8414-2000
MHCC010063722019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 2296 OF 2019
IN
SUIT NO. 8414 OF 2000
Ahura Mazda Dairy Farm Pvt. Ltd. ]
Registered Officer at G. SX., 91-C ]
Veer Jijamata Nagar, Next to Nehru ]
Science Center, Dr. E. Moses Road, ]
Mumbai- 400 018. ] … Applicant in NM
IN THE MATTER BETWEEN
M/s. Kwality Food & Masala Products ]
185/187, Samuel Street, Khoja Galli ]
Mumbai- 400 009. ] … Plaintiff
Versus
Ahura Mazda Dairy Farm Pvt. Ltd. ]
Registered Officer at G. SX., 91-C ]
Veer Jijamata Nagar, Next to Nehru ]
Science Center, Dr. E. Moses Road, ]
Mumbai- 400 018. ] … Defendant
Appearances :-
Learned advocate Yahya Ghoghari for plaintiff.
Learned advocate Swati Sagvekar for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 29.01.2025
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O R D E R
The defendant has taken out present notice of motion for
claiming the relief inter alia;
(a) To condone the delay of 327 days in filing notice of motion
for setting aside the order dated 18.07.2018 passed by this Court.
(b) To vacate and set aside the order dated 18.07.2018,
whereby the suit proceeded ex-parte against the defendant.
(c) To grant such other and further reliefs as the Court may
deem fit and proper in the facts and circumstances of the case.
(d) To provide the Costs of the notice of motion.
2. In affidavit in support, it is contended that the plaintiff
abovenamed has filed the aforementioned suit for declaration that the
agreement dated 02.07.1998 stands duly terminated by the plaintiff and
the same is not effective and binding in law and for other reliefs more
particularly mentioned therein in the year 2000. It is further contented
that, on 18.07.2018 an ex-parte order was passed against this
defendant by this Court. It is further contented that in the meanwhile
the Directors of this defendant were prosecuted under MPID Act and in
an application preferred by the said Marol Doodh Utpadak Welfare
Association, the Hon'ble Bombay High Court directed the police to seize
the properties of the defendant and recover the money by selling the
seized properties. It is further contended that in the said application
preferred by the said Marol Doodh Utpadak Welfare Association, the
plaintiff was one of the respondent thereto.
3. According to the defendant, on 04.04.2002, the Police
Department issued public notice for sale of the said properties but no
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person came forward to purchase the said properties. Thereafter, an
order dated 09.10.2002 was passed by the Special Court in
Miscellaneous Application No.554 of 2002 filed by C.I.D., Mumbai
against the defendant directing the Directors of the defendant and the
Private Investors to bring purchasers for sale of seized properties and
distribute money received from sale proceeds to the investors.
4. It is the further contention of the defendant that on
21.10.2002 the Marol Doodh Utpadak Welfare Association filed an
application for stay before the Special MPID Court which was rejected.
The said order was carried in appeal before the Hon'ble Bombay High
Court by Marol Doodh Utpadak Welfare Association vide Criminal
Application No. 4443 of 2002, wherein vide order dated 12.03.2003,
said Marol Doodh Utpadak Welfare Association was given an
opportunity to run the Dairy for a period of one year on certain terms
and conditions mentioned therein. However, the said Marol Doodh
Utpadak Welfare Association could not honour the order and the suit
premises was against sealed by C.I.D. Mumbai Police.
5. It is also contended that the defendant has been facing
several litigations filed by the investors and have been running from
pillar to pose. The defendant had literally become bankrupt paying off
the investors. In the meanwhile, settlement talks were going on
between one of partners of the plaintiff Shri. Mahendra Doshi and the
defendant, who had assured the defendant not to proceed with the
matter and that he along with the defendant shall bring in certain
purchasers for the suit properties along with the other properties of the
defendant and had requested not to attend the matter for a while due to
which the matter went ex-parte against the defendant. The defendant
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has further contended that on 06.06.2019 when the defendant was
present in the Court, he was informed by the Court that the matter has
been proceeded ex-parte against the defendant and he has been granted
liberty to take appropriate steps to set aside the said order and hence
there is a delay of 327 days. According to the defendant, the said delay
is not intentional and deliberate and he prays to quash and set aside the
order dated 18.07.2018 and to allow the defendant to cross examine
the witness of the plaintiff in the interest of justice and equity.
6. The plaintiff has opposed the present notice of motion by
filing affidavit in reply on the grounds that the defendant has taken out
present notice of motion after 19 years of filing of the present suit. It is
submitted that the defendant tried to appear before this Court before
also, when the Court refused to hear them stating that they should file a
proper written application. The defendant did not take any step and
they approached this Court now when the Court was to proceed ex-
parte in the matter. It is further submitted that the Director of the
defendant has time and resources to appear before all other Courts
including the Hon'ble Supreme Court. Only, he does not have time to
appear before this Court for 19 years, On this ground alone, the above
notice of motion be dismissed with costs.
7. According to the plaintiff, the above suit is filed for a
declaration that the suit agreement dated 02.07.1998 is terminated and
for possession of the suit property, was filed before the Hon'ble Special
Court under the MPID Act gave directions to seal the suit property. It is
further submitted that the plaintiff has challenged the order of sealing
of the suit property which actually belongs to the plaintiff and vide the
order dated 28.01.2013 passed by the Hon'ble High Court in Criminal
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Application No. 1800 of 2012 in Criminal Appeal No. 1097 of 2012, the
Hon'ble High Court has stayed the sale of the said suit property. The
said Criminal Revision Application is pending before the Hon'ble High
Court. It is also submitted that the suit property was never transferred
to the defendant. The MPID proceedings are against the director of the
Company wherein the suit property is wrongfully attached and which is
under challenged by the plaintiff.
8. It is the further submission of the plaintiff that Marol
Doodh Utpadak Welfare Association made several attempts to intervene
in the above suit before the Hon'ble High Court and as also in this Court
when the suit was transferred. But, the same were rejected by the both
the Courts. Therefore under the guise of the wrongful sealing of the suit
property in the proceedings which are never initiated against the
defendant and since the Hon'ble High Court has stayed sale of the suit
property, the defendant is trying to misguide this Court to avoid the
Decree against them. It is also submitted that till date, the defendant
has not filed written statement as they do not have any defense.
Therefore the above notice of motion needs to be dismissed with costs
on this ground alone.
9. Perused the notice of motion, reply and record. Heard both
the sides.
10. The plaintiff has filed the suit for declaration of termination
of agreement and possession of the suit property. From the pleadings of
both the parties, it is seen that other litigations are going on between
them. The record indicates that the delay in filing of written statement
was condoned by the Hon’ble High Court subject to Costs of Rs.3000/-
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vide order passed in Chamber Summons No.341/2011. Thereafter, the
said suit transferred to this Court. It appears from the roznama that
after the transfer the matter to this Court the defendant was
continuously absent till 15.06.2016. It can be gathered from the record
that on 16.07.2016 the representative of the defendant appeared and
on 18.07.2018 exparte order was passed against the defendant.
11. The roznama and the record nowhere shows any grievance
raised by the plaintiff after passing the order dated 26.04.2011 that the
defendant did not file written statement on record. Already the delay
upto April, 2011 was condoned by the Hon’ble High Court and again on
18.07.2018 exparte order was passed against the defendant. Now the
defendants want to contest the matter on merit. According to the
defendant the settlement talks were going on between both the parties
and the same was not materialized due to which the delay is caused. It
is not expected from any party to keep the other party waiting under
guise of settlement and if the matter could not be settled raised
objection about the delay. It is pertinent to note that in the present case
the plaintiff nowhere informed the Court that they have not received
the amount of Costs as per order dated 26.04.2011. To decide the
controversy, in the interest of justice, a fair opportunity should be given
to the all the parties to set up their case. In the case of Metal Rolling
Works Limited V/s. Haresh Kapadia and others, Interim Applications
No.2047/2019 in Suit No.3350/2009,
the Hon’ble Bombay High Court
has condoned the delay of 1503 days subject to costs of Rs.40,000/- by
observing that, “This Court has always insisted advocate to appear and
argue the case as and when it is called out for hearing. Failure to due so
would be unfair to the client and discourteous to the Court and must be
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severely discountenanced. At the same time, the Court has also
emphasized doing justices to the cause wherein it is appropriate that
both the parties are present before the Court.”
12. In view of the facts, circumstances and submissions made
before me, I am of the view that, the delay caused in taking notice of
motion not seems to be intentional as only the representative of the
defendant was appearing and not their advocate. It can be gathered
from the record that, on 13.06.2019 the vakalatnama was tendered on
behalf of defendant and thereafter, the present notice of motion was
filed. In this peculiar circumstances, the liberal approach should be
adopted while condoning the delay subject to Costs. In the result,
following order is passed:-
ORDER
1. The Notice of Motion No. 2296 of 2019 is hereby allowed in
terms of prayer clause (a) and (b) subject to Costs of
Rs.5,000/- payable to the Bar Library of City Civil Court,
Mumbai till next date.
2. The plaintiff is directed to produce the receipt about
payment of Costs.
3. The Notice of Motion No. 2296 of 2019 stands disposed of.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 29.01.2025 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15.02.2025 at 01.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 29.01.2025
Judgment/Order signed by P.O. on 15.02.2025
Judgment/Order uploaded on 15.02.2025
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