Final Order 1

Order Details: Other
Pdf Text: 1 TA170.19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Transfer Application No.170 of 2019
In
Notice of Motion No.114 of 2019
In
S.C. Suit No.5026 of 2007
Mahadeo Vithal Koli ..Applicant
V/s.
Sanjay Patel & Ors. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 3rd August,2019
(C.R.No.19)
Applicant and advocate absent.
Advocate Mr.Yashesh Kamdar i/b. M/s.MDP and Partners for respondent
nos.1 and 3.
Respondent no.2 inperson present.
O R A L O R D E R
Read application. Read say of respondent nos.1 and 3.
2 It appears that the applicant had taken out Notice of Motion
No.3476/17 against the Director of respondent/Company which came to
be decided by Shri K.R. Joglekar, learned Judge of this court. Now another
Notice of Motion No.114/19 is again taken out against another Director of
the respondent/Company which is pending in C.R. No.14. According to
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applicant, since the earlier Notice of Motion was decided by Shri K.R.
Joglekar, the present Notice of Motion i.e. 114/19 is also liable to be heard
by him. The applicant also prayed even transfer of Suit No.5026/07 from
C.R. no.14 to the court of Shri K.R. Joglekar.
3 Applicant and his counsel absent when called. Mr.Yashesh
Kamdar, learned counsel for respondent nos.1 and 3, opposed the
application by contending that second Notice of Motion is not at all heard
and, therefore, it is not desirable to transfer the said Notice of Motion to
the court as prayed by the applicant. The learned counsel also placed
reliance in Usmangani Adambhai Vahora V/s. State of Gujarat & anr
in Criminal Appeal Nos.15921593 of 2015 (@ S.L.P. (Criminal)
Nos.93749375 of 2015) decided on 8 th January,2016, M/s. Chetak
Construction Ltd. V/s. Om Prakash & Ors decided on 20th April,1998
and Union of India & Ors. V/s. M/s.Cipla Ltd. & anr., decided on 21st
October,2016.
4 Respondent no.2 appeared inperson and adopted the
submissions made by learned counsel for respondent nos.1 and 3.
5 On going through the record, it is seen that earlier similar
application No.14/19 moved by the applicant was allowed by this court.
However, it appears from the pleadings that by the time the said order
reached to the concerned court, the concerned Judge was transferred to
some other court in view of change in assignment.
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6 There is no dispute to the fact that the earlier Notice of Motion
no.3476/17 was heard and decided by Shri K.R. Joglekar. Thus, the
learned Judge is aware of all the facts and circumstances of the case
including the material which enabled him to pass the order. In such
circumstances, no harm will be caused to the respondent if the present
Notice of Motion which is of similar nature is heard and decided on merits
by Shri K.R. Joglekar presiding Judge of C.R. no.45.
7 So far as prayer of transfer of suit is concerned, it is not
maintainable on two counts. Firstly, it appears that at the time of hearing
of T.A. 14/19 which was allowed by this court, the applicant had
suppressed the material fact i.e. about the dismissal of the suit. This fact is
pointed out by respondent no.2 inperson and as also it is apparent from
the reply of respondent nos.1 and 3. I have taken out the case status of
Suit No.5026/07 today itself which shows that the said suit came to be
dismissed for default on 11th November,2016. Therefore, this prayer on
this count alone cannot be entertained.
8 Secondly, assuming that the suit is very much alive on record
then in view of definition of District Court given in Section 2(4) of the
Code of Civil Procedure it becomes more than clear that Principal Court of
original jurisdiction cannot exercise powers under Section 24 of Code of
Civil Procedure. Therefore, the prayer to that extent is not maintainable.
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9 In view of above, I pass the following order:
O R D E R
Transfer Application No.170/19 is partly allowed.
Notice of Motion No.114/19 pending in C.R. No.14 stands
transferred to C.R. No.45 for disposal in accordance with law. However,
the prayer to transfer Suit No.5026/07 being infructuous, stands disposed
of.
Concerned Courts be informed accordingly.
03/08/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 03/08/2019
Transcribed on : 05/08/2019
Signed by HHJ on : 05/08/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 06/08/2019 (10.30 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 3rd August,2019
Order signed by P.O. on 5th August,2019
Order uploaded on 6th August,2019
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