Final Order 2

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2567 OF 2019
IN
NOTICE OF MOTION NO.4535 OF 2018
IN
S.C. SUIT NO.2565 OF 2015
Bhushan Power & Steel Limited ] … Plaintiff
V/s.
M/s. New Trade Link Impex Pvt. Ltd & Ors. ] ... Defendants
Appearances :-
Ld. Adv. S.R. Baig for plaintiff.
Ld. Adv. Sarita Yadav for defendant No.1 and 2.
Ld. Adv. Mr. Bagawe for defendant No.3 to 6.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.20)
DATED : 18th September, 2019
ORAL ORDER
1. Defendant No.1 and 2 filed this Notice of Motion to set
aside order dated 28.01.2019 to proceed with Notice of Motion
No.4535 of 2018 ex-parte against them and they be permitted to file on
record reply to the said Notice of Motion No.4535 of 2018.
2. Perused Notice of Motion, affidavit of defendant No.1 in
support of Notice of Motion and reply of the plaintiff to the Notice of
MHCC01-007073-2019
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Motion. Heard Learned Advocate appearing for plaintiff and defendant
No.3 to 6.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether order of proceeding ex-parte
against the defendant No.1 and 2 in
Notice of Motion No.4535 of 2018 can
be set aside ?
In the affirmative.
2. Whether defendant No.1 and 2 can be
permitted to file reply to the Notice of
Motion No.4535 of 2018 ?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of defendant No.1 that plaintiff
filed the suit for recovery of amount specifically mentioned in the
plaint. The suit was dismissed on 20.10.2018 as plaintiff did not
prosecute it. Defendant No.1 and 2 were attending the Court on all
dates. Plaintiff took out Notice of Motion No.4535 of 2019 for
restoration of the suit and served the copy of the Notice of Motion upon
the defendants on 11.01.2019. Due to miscommunication date of
hearing is noted as 06.03.2019 instead of 28.01.2019. On 06.03.2019,
Advocate of defendant No.1 was present in the Court and came to know
that order is passed on 28.01.2019 to proceed ex-parte Notice of Motion
No.4535 of 2018 against defendants. Therefore, the said order be set
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aside to the extent of defendant Nos.1 and 2 and they be permitted to
file reply and contest the said Notice of Motion.
5. In brief, it is contention of the plaintiff that this Notice of
Motion is nothing to delay the proceeding. The reason mentioned in
the Notice of Motion in respect of taking a wrong date is not correct.
Therefore, Notice of Motion be dismissed.
6. Perused Noting / Roznama dated 28.01.2019. It is
mentioned therein that defendant Nos.1 to 6 is served with Notice of
Motion No.4535 of 2018 by private courier. They remained absent.
Therefore, the Notice of Motion No.4535 of 2018 be proceeded ex-arte.
7. Considering the facts and circumstances, I am of the
opinion that to decide the said Notice of Motion No.4535 of 2018 on
merit, defendant Nos.1 and 2 can be permitted to file reply to the said
Notice of Motion and to contest the said Notice of Motion. Therefore,
the said ex-parte order dated 28.1.2019 can be set aside. Hence, I
record my findings to point Nos.1 and 2 in the affirmative and point
No.3 the Notice of Motion is allowed as per final order. Hence
following order:
ORDER
Notice of Motion No.2567 of 2019 is hereby allowed as under:
1. Order dated 28.01.2019 proceeding ex-parte Notice of Motion
No.4535 of 2018 against the defendant No.1 and 2 only is hereby set
aside.
2. Defendant No.1 and 2 are permitted to file their reply to the
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Notice of Motion No.4535 of 2018 till next date.
3. Due to Covid-19 pandemic, it is not proper to grant short
time to defendant No.1 and 2 to file reply to the said Notice of
Motion, hence defendant No.1 and 2 are permitted to file reply to
the Notice of Motion No.4535 of 2018 on 09.11.2020.
4. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 18/09/2020 City Civil Court, Gr. MUMBAI
Dictated on : 18/09/2020.
Transcribed on : 19/09/2020.
checked on : 21/09/2020
Signed on : 22/09/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.09.2020 at 02.00 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 18.09.2020
Judgment/order signed by P.O. on 22.09.2020
Judgment/order uploaded on 25.09.2020
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