Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of
Motion No. 2313 of 2019 1
MHCC010064132019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.2313 of 2019.
IN
SUMMARY SUIT NO.324 of 2014.
Sudarshan B. Shinghal ...Applicant/
Plaintiff.
In the matter of :-
Sudarshan B. Shinghal ..Plaintiff
V/s.
M/s. Powertex Tools Co. Pvt. Ltd. ..Defendant.
Appearances :-
Adv.Ms Shubhangi Fating for Plaintiff.
None for defendant.
Coram : U. C. Deshmukh.
-- 1 of 6 --
Order on Notice of
Motion No. 2313 of 2019 2
C.R. No.: 59.
Date : 18/08/2023
ORAL ORDER
This Notice of Motion is moved by the plaintiff to set aside the
order dated 16.03.2019 whereby the suit of the plaintiff dismissed for
want of prosecution.
2. It is contention of the plaintiff that he is instituted the suit for
recovery of an amount and it was pending for compliance of direction
issued to supply legible copies of the documents. The documents were
misplaced. Hence, the plaintiff could not comply the direction of the Court
on 16.03.2019. However, the plaintiff could not comply the direction
Hence. On 16.03.2019 the Court passed impugned order.
3. It is specific contention of the plaintiff that it has filed affidavit
of evidence and compilation of documents on 16.10.2018 and it is ready
to supply of the copies the same documents to the plaintiff if the suit is
restored. Hence, prayed to allow the Notice of Motion and to restore the
suit.
4. The defendant filed reply with contends that this Notice of Motion is
filed by the plaintiff is false, frivolous and misleading to the Court. The
defendant specifically contends that the plaintiff has not provided legible
-- 2 of 6 --
Order on Notice of
Motion No. 2313 of 2019 3
and readable copies to the defendant. Hence, the defendant was unable to
reply documents filed by the plaintiff. Instead of direction given by the
Court, the plaintiff and his advocate were absent. Therefore, the impugned
order is just and legal. Hence, prayed to reject the Notice of Motion.
5. It is submission of the Ld. advocate for the plaintiff though
there is no record with the plaintiff has complied direction of the Court
order. However, the plaintiff had supplied legible and readable copies of
the documents on record. It is further submission of the Ld. advocate for
the plaintiff that the plaintiff has instituted the suit for recovery of money.
If the suit is not restored then the plaintiff will suffer irreparable loss.
Hence, prayed to allow the Notice of Motion.
6. Defendant and his advocate failed to argue. Hence, the
considering contends of the reply filed by the defendant this Notice of
Motion is taken for decision. It is contention of the defendant that the
plaintiff was not vigilant in conducting the suit. The plaintiff and his
advocate was absent through out the proceeding before the Court. Hence,
the plaintiff is not entitled for relief sought. It is also contention of the
defendant that there is 29 days delay, the plaintiff has not given proper
explanation therefor. Hence, prayed to reject the Notice of Motion.
7. At the outset, it is necessary to note that there is no dispute
that the plaintiff has filed the suit for recovery of money. The suit was
dismissed for want of prosecution as plaintiff failed to supply legible and
readable copies of the documents. Now the plaintiff is ready to supply the
-- 3 of 6 --
Order on Notice of
Motion No. 2313 of 2019 4
readable and legible copies of the documents. Admittedly, the record show
that the plaintiff failed to comply the order of the Court within the time.
8. Considering the nature of the suit, if Notice of Motion is
rejected he is the plaintiff who will suffer irreparable loss. Simultaneously,
it is apt to mention that if the suit is decreed and it is directed that
decreetal amount shall fetch interest, then he is defendant who will suffer
loss for non action on the part of the plaintiff. In such circumstances, it is
essential to allow the Notice of Motion with cost with direction which are
as follows.
9. The plaintiff has instituted the suit in the year 2014. issues
are framed on 06.07.2018. The Notice of Motion is moved in the year
2019. Hence, cost of Rs. 7,000/- will meet the end of justice. Hence,
following order is passed :
ORDER
1. Notice of Motion No. 2313 of 2019 is allowed subject to cost of
Rs. 7,000/- (Rs. Seven Thousand Only) to be paid within a month.
2. On deposit of aforesaid cost, an amount Rs. 5,000/- (Rs. Five
Thousand only) be paid to the defendant and remaining amount of
Rs.2,000/- (Rs.Two Thousand Only), be credited towards District
Legal Authority Service, Mumbai.
3. On deposit of aforesaid cost, the suit be restored to its original
stage.
-- 4 of 6 --
Order on Notice of
Motion No. 2313 of 2019 5
4. Both parties to take note if the suit is decreed and it is directed
that the interest shall run on the decreetal amount, no interest shall
be levied from the 06.06.2017 on which issues are framed till the
date the plaintiff to supply legible and readable copies of the
documents to the defendant in the Court.
(Dictated and Pronounced in Open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:18.08.2023 Greater Bombay (CR 59).
Declared on : 18.08.2023
Dictated on : 18.08.2023
Transcribed on : 30.08.2023
Checked on :31.08.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.09.2023 at 3.45 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 25.08.2023
Order signed by P.O. on 03.09.2023
order uploaded on 03.09.2023
-- 5 of 6 --
Order on Notice of
Motion No. 2313 of 2019 6
-- 6 of 6 --