Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.2593/2019 in Sum. Suit No.7627/2001
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2593 OF 2019
CNR NO.:MHCC010071182019
IN
SUMMARY SUIT NO. 7627 OF 2001
(HIGH COURT SUIT NO. 3172 OF 2001)
BALLARPUR INDUSTRIES LTD, and another ...Plaintiffs
Versus
National Insurance Company Limited ...Defendant
Appearances:
Advocate Mr. Rushi for the plaintiffs.
Advocate Ms. Poonam Mittal for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 6th JANUARY, 2020.
ORAL ORDER
This Notice of Motion filed by plaintiff to set aside Order of
closing his evidence.
2. Plaintiff has stated that plaintiff's witness did not deliberately
remain absent and it was due to dier illhealth he was forced to remain
absent. Plaintiff's witness was advised rest and therefore, could not
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remain present for crossexamination on the order dated 04.12.2018.
3. Defendant has filed reply to this Notice of Motion and stated that
defendant has received un affirmed copy of Notice of Motion.
Defendant has contended that Mr. Prasad Gawand who has filed Notice
of Motion has not stated his designation in the plaintiff Company as to
when he joined the Company and there is no authority letter annexed
as to when he was authorised to file Notice of Motion. Defendant has
further contended that the Order to be recalled prayed by plaintiff is not
annexed to the Notice of Motion.
4. Defendant has further contended that the Medical Hospital Bills
are of the month of April, 2015. According to plaintiff documents,
plaintiff's witness had surgery on 4th March, 2015 which shows that
fraud played by the plaintiff.
5. Defendant has submitted that in between 2015 to 2018 plaintiff's
witness No.1 appeared on various occasions before 4th December, 2018
and also at the time of filing the affidavit of evidence he himself was
present in the Court and thus the averment made in the Notice of
Motion are on the basis of fraud and baseless.
6. Defendant has contended that if the witness is examined then
only he can be recalled but in the present case the witness has yet not
lead any evidence so no such Order can be passed.
7. Plaintiff has filed rejoinder and stated that defendant never
requested to give affirmed numbered copy of the Notice of Motion.
Plaintiff has further stated that the Board Resolution was not annexed
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in the copies served upon the defendant due to inadvertent error.
Plaintiff has further stated that omission by him in not annexing Order
dated 04.12.2018 cannot be grounds for dismissal of the Notice of
Motion. Plaintiff has further stated that plaintiff's witness had
undergone a surgery on 3rd April but due to inadvertent error it was
noted as 4th March. Plaintiff has further stated that the Medical Bills
produced are correct. Except there is a typographical error in the date of
the surgery. Plaintiff has further stated that plaintiff's witness surgery
has taken place post the filing of his evidence affidavit. Hence, the
question of his illhealth doesn't arise prior to that. Plaintiff has further
stated that if the Order is not set aside closing his evidence, then he will
suffer irreparable loss.
8. It appears, defendant has not pointed out what harm is caused to
him by not getting copy of numbered Notice of Motion. It appears the
Order of closing evidence of plaintiff is passed on 04.12.2018. Plaintiff
has produced Medical Papers of the year 20162017 showing the
medical history. There is certificate of the year 2017 that the witness
had a brain surgery and also having spine problem dated 10.06.2017. It
appears from the some Medical Papers of the year 2015 also produced.
It appears there is a Medical Certificate dated 05.12.2018 that the
witness was admitted for treatment. There is another Certificate dated
08.02.2019 that the witness has undergone surgery, it shows about ill
health of the witness of the plaintiff. Considering the medical history of
the witness and that he has gone through surgery, it appears the reason
that plaintiff's witness could not remain present due to illhealth
appears to be a bonafide reason. The suit is filed by plaintiff. Definitely,
if plaintiff is not allowed to lead evidence, he will suffer irreparable loss.
Hence, it will be proper to allow him to lead evidence.
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9. Ld. Counsel for the plaintiff cited judgment of the Hon'ble
Bombay High Court in case of Alka Namdo Shelar v. Kaluram
Housaram Harpale (decd) through LRs Pooja K. Harpale and others
in Writ Petition No.5773 of 2016, 2017 SCC OnLine Bom 7437, in
which it is held that, “in the interest of justice the order is set aside subject
to costs”. In the case in hand also if the Order is not set aside and
plaintiff's witness is not allowed to lead evidence, then plaintiff will lose
opportunity to fight case on merits. Hence, in the interest of justice, it
will be proper to allow the application. Hence, this case law is squarely
applicable to the case in hand.
10. Ld. Counsel for the plaintiff cited another judgment of the
Hon'ble Apex Court in case of Foodworld Super Markets Limited And
Another v. H. Sujan Singh and others in Civil Appeal No.2380 of
2009, decided on April 13, 2009, (2009) 14 SCC 359, in which it is
held that, “the explanation offered by the defendants appears to be not
only satisfactory but also bonafide and the Order is set aside”. In the case
in hand also, the explanation offered by plaintiff that his witness
undergone surgery and therefore, could not remain present appears to
be genuine and bonafide. Hence, this case law is squarely applicable to
the case in hand.
11. As discussed above in the interest of justice to give fair
opportunity to plaintiff to fight case on merits, it will be proper to allow
this Notice of Motion. Hence, following order :
ORDER
1. Notice of Motion No.2593 of 2019 is allowed in terms of prayer
clauses (a) and (b).
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2. Notice of Motion No.2593 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 06.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 06.01.2020
Transcribed on : 06.01.2020
Signed on : 06.01.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.01.2020 At 05:12 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. AGARWAL
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
06.01.2020
Judgment/Order signed by P.O. on 06.01.2020
Judgment/Order uploaded on 10.01.2020
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