Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2605-19 in S.C. Suit no. 2098-15 Date : 18.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2605 OF 2019
IN
S.C. SUIT NO. 2098 OF 2015
(CNR NO.MHCC01-007155-2019)
Ornate Housing Pvt. Ltd. .. Plaintiff.
Versus
The Abhyuday Nagar Sahakari
Gruhanirman Sansthancha Sangh Ltd. & Ors. .. Defendants
Appearances :-
Ld. Adv. Nikhil Rajeshirke for plaintiff.
Ld. Adv. Ms. Shachi Udeshi, Aryan for defendant no.2 .
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 18.09.2021
ORDER
1. The defendant no. 2 filed instant Notice of Motion praying
for allowing them to file their Written Statement by condoning the
delay of 1030 days.
2. It is contended by the defendant no. 2 that they were served
with writ of summons on 06.08.2016. Prior to that they appeared
on 29.09.2015.
3. On 25.11.2016 defendants raised preliminary issue
regarding jurisdiction of the Court which was came up for hearing
on 09.06.2017. In the meantime, the matter was time to time
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NM 2605-19 in S.C. Suit no. 2098-15 Date : 18.09.2019
adjourned. Further in view of deletion of Section 9(a) of C.P.C.,
this Court vide its order dated 12.07.2018 postpone that issue of
jurisdiction to be decided alongwith other issues.
4. It is further contended that both the parties informed to the
Court that ad-interim relief which was refused by this Court was
confirmed by the Hon’ble Apex Court. Therefore, this Court vide
its order dated 28.08.2018, disposed of Notice of Motion No. 3479
of 2015 as it was infructuous and proceeded for ex-parte evidence.
5. It is contended by the defendant that they were acting
diligently and proceeding with the available remedy to challenged
the jurisdiction of the Court and in that process, the delay of 1030
days has been caused to file Written Statement. They have
submitted that there is no intentional delay on their part. They
should be allowed to contest the suit on merit. Therefore, they
prayed for allowing Notice of Motion.
6. The Notice of Motion is opposed by the plaintiff by filing say
on the ground that the defendant failed to explained the delay.
The reasons assigned are not cogent and sufficient. Hence, the
plaintiff prayed for rejection of the Notice of Motion.
7. Heard both the sides. Perused Notice of Motion, reply and
record and proceeding. On perusal of Roznama, it appears to me
that even prior to service of writ of summons, the defendant
appeared in the matter and contested the proceedings. I do not
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NM 2605-19 in S.C. Suit no. 2098-15 Date : 18.09.2019
find any material to suggest that the defendant in order to protract
the matter caused delay or intentionally failed to file Written
statement. The record shows that the defendant prosecuting their
remedy available by law. I am of the view that in the event delay
is not condoned, the suit will be proceeded ex-party which will
certainly defeat the valuable right of the defendant to contest the
suit. The inconveniency caused to the plaintiff can be
compensated by awarding reasonable cost. Thus, I proceed to pass
the following order :
ORDER
1. Notice of Motion No. 2605 of 2019 is hereby allowed in
terms of prayer clause (a) to (c) subject to condition of payment of
cost of Rs. 10,000/- by the defendant no. 2 to the plaintiff within a
period of 15 days from the date of order.
2. Upon payment of the aforesaid amount, written statement be
taken on record.
3. Parties to bear their own cost.
4. Notice of Motion No. 2605 of 2019 stands disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 18.09.2021 Greater Bombay.
Dictated on : 18.09.2021
Typed on : 21.10.2021
Draft Submitted on : 21.10.2021
Checked on : 22.10.2021
Signed on : 22.10.2021
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NM 2605-19 in S.C. Suit no. 2098-15 Date : 18.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22/10/2021 at 3.00 p.m (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of
JUDGMENT/ ORDER
18/09/2021
JUDGMENT/ORDER signed by P.O.
on
22/10/2021
JUDGMENT/ORDER uploaded on 22/10/2021
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