Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 390/21 in Suit No. 403/21. 1 Order.
MHCC010114012021
Presented on : 08-02-2021
Registered on : 08-02-2021
Decided on : 01-07-2024
Duration : 3 years, 4 months, 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 390 OF 2021
IN
SUIT NO. 403 OF 2021
Mrs. Pushplata Rajan Mantena )
Nee Pushplata S. Adap )...Applicant/Original
Defendant No.3
IN THE MATTER BETWEEN
M/s. A.R. Constructions )...Plaintiff
Versus
Smt. Vijayalaxmi S. Adap and others )...Defendants
Shri Vinod L. Desai, Advocate for the plaintiff.
Shri Nitin B. Kaskar, Advocate for the defendant no.1 to 3.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 1st JULY, 2024.
ORDER
1. This notice of motion is moved by defendant no.1 to 4 to
set aside ex-parte order dated 11/10/2018 and permit them to file
written statement.
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N/m No. 390/21 in Suit No. 403/21. 2 Order.
2. It is the contention of the defendants that they are not
served with writ of summons. They came to know about the suit on
03/10/2020. The service report filed by the Bailiff namely Mr. Pravin
Kajarekar is false as defendant never resided on address given by the
plaintiff in the plaint. They also contend that the father of defendant
no.3 namely Sidram Venkatraja Adap expired on 17/01/2015 leaving
behind eight heirs. Therefore the plaintiff had asked them to obtain
heirship certificate. Hence there is delay. Hence this notice of motion.
3. In reply, the plaintiff contends that there is no explanation
for such delay of four months to file notice of motion. The plaintiff
denied contents of all of contentions of notice of motion. In addition to
denial of notice of motion, the plaintiff states that defendant no.1 and 2
alongwith all heirs of original defendant namely Mr. Sidram Adap
approached it to settle the dispute and there is agreement for sale
executed in between the plaintiff and defendant in respect of Flat No.
1801. However, as per agreement all heirs of original tenant did not
appear before the office of Sub-Registrar. Hence said agreement could
not be registered. It is also the contention of the plaintiff that the
defendants have not filed copy of certificate on record. Hence prayed to
reject the notice of motion.
4. At the outset, it is necessary to note that the plaintiff has
instituted suit for recovery of an amount due as per agreement executed
in between the plaintiff and deceased Sidram Adap to allot the
permanent accommodation. It is the case of the plaintiff that as per
agreement defendants being heirs of deceased Sidram Adap are liable to
pay the suit amount. However, it is pertinent to note that the case of the
plaintiff by reply to the notice of motion in respect of the agreement for
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N/m No. 390/21 in Suit No. 403/21. 3 Order.
sale in respect of Flat No. 1801 is all together different than his original
case vide the suit. It is also necessary to note that the suit is instituted
on 18/06/2018 where the plaintiff did not mention as to execution of
production of heirship certificate. The plaintiff has also knowledge of all
heirs of deceased Sidram Adap. However it has not made all of them
parties to the suit. Whether suit would be maintainable against present
defendants in absence of other heirs of Sidram Adap is matter of
enquiry and trial. The plaintiff has merely denied contents of the notice
of motion as to non-service of writ of summons. Considering all these
facts, it is necessary to permit the defendants to file their written
statement to decide the suit on merit. In the result, following order is
passed :
- ORDER -
1. Notice of Motion No. 390/2021 is allowed in terms of prayer
clause (a) and (b).
2. The defendants to file written statement alongwith affidavit or in
the nature of affidavit on or before next date.
3. Accordingly N/m No. 390/2021 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 01/07/2024. Mumbai.
1. Dictated on : 01/07/2024.
2. Transcribed on : 10/07/2024.
3. Placed for correction on : 10/07/2024.
4. Checked on : 11/07/2024.
5. Correction carried on : 11/07/2024.
6. Signed on : 11/07/2024.
7. Delivered to Certified :
Copy Section on
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N/m No. 390/21 in Suit No. 403/21. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11/07/2024. 5.28 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 01/07/2024.
Judgment/Order signed by P.O. on 11/07/2024.
Judgment/Order uploaded on 11/07/2024.
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