Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2532/19 in Suit 4521/11
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 2532/2019
(CNR No.MHCC010069542019)
IN
S.C. SUIT NO. 4521/2011
Dhanlaxmi Coop. Hsg. Soc. Ltd. ..Plaintiff
V/s.
1. Deju K. Poojari
2. K.B. Kotian
3. K.B. Shetty
4. Jayendra Ramji Pandey ..Defendants
Appearance:
Adv. Mr. Mane for plaintiff.
Adv. K. Andrws for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 28.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by Ld. Counsel
for defendants praying for extension of time to comply with order
passed in N/M No. 1771/18 dated 20.4.2019 by which 14 days time
was granted by paying costs of Rs.10,000/. It is further submitted that,
WS filed by defendant no.4 may be taken on record after making
necessary compliance.
2. The Motion is supported by an affidavit filed by Mr.
Jayendra Pandey, defendant no.4 in the suit. Ld. Counsel for the
plaintiff has opposed the Motion and relied on the affidavit in reply
filed by Mr. Chandradev Pandey, being representative of the plaintiff.
-- 1 of 4 --
2 N/M 2532/19 in Suit 4521/11
3. I have gone through the N/M and supporting affidavit as
well as affidavit in reply opposing the Motion.
4. I have taken into consideration oral submissions made by
Ld. Counsels for both sides. It can be seen from the grounds stated in
the affidavit by defendant no.4 that, he could not comply with the order
passed by this court within stipulated time because when the order was
passed on 20.4.2019 he was at his native place from 18.4.2019 till
9.5.2019 and therefore, he could not come to Mumbai and make
necessary compliance. It is submitted that, he returned to Mumbai on
9.5.2019 and since it was summer vacation till 3.6.2019, he could not
take steps in the matter. After reopening of the court, he has taken out
present N/M, seeking extension of time for making compliance.
5. Ld. Counsel for the plaintiff has opposed the Motion and
relied on the reply affidavit and submitted that, there has been 6 yrs., 3
months and 13 days delay in filing the WS and this fact was mentioned
by him in his reply on 18.9.2018 in N/M No.1771/18. Direction of the
court to make payment of costs is a condition precedent and defendant
no.4 has failed to comply with the said direction and therefore, the N/M
1771/18 stood dismissed. Under the above circumstances, it is
submitted that, the present Motion cannot be allowed as it does not
survive for adjudication. Ld. Counsel has referred to order passed by the
court in the matter on 20.4.2019, wherein it is specifically mentioned
that, the order itself is conditional order and since the defendant no.4
has failed to comply the said order, nothing survives for passing fresh
order by this court. Hence, the Motion is liable to be dismissed.
6. It is true that, the order dated 20.4.2019 was conditional
order and defendant no.4 has failed to comply with the same, therefore
-- 2 of 4 --
3 N/M 2532/19 in Suit 4521/11
the Motion stood dismissed automatically. However, grounds stated by
the defendant no.4 supported by the affidavit are probable and
reasonable grounds, therefore, I am of the opinion that, if the Motion
taken out by the defendant no.4 is rejected, it will result into failure of
justice. Hence, I proceed to pass following order:
ORDER
1. Notice of Motion No. 2532/2019 is hereby allowed.
2. Defendant no.4 shall pay costs of Rs.10,000/ as per
order in N/M No. 1771/18 dated 20.4.2019 along
with additional costs of Rs.2,000/ within three weeks
from today.
3. If the above order is complied with by the defendant
no.4, the order passed in N/M No.1771/18 dated
20.4.2019 shall stand set aside and modified,
permitting the defendant no.4 to pay the costs within
extended time and then WS of the defendant no.4
shall be taken on record.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 28.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 28.11.2019
Typed on : 29.11.2019
Signed by HHJ on : 30.11.2019
-- 3 of 4 --
4 N/M 2532/19 in Suit 4521/11
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 30.11.19
TIME: 5.36 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 28.11.19
Judgment/ order signed by P.O on 30.11.19
Judgment/ order uploaded on 30.11.19
-- 4 of 4 --