Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2708/2019 in
S.C. Suit No.4744/2007. 1 Order.
MHCC010074352019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2708 OF 2019
IN
S.C. SUIT NO. 4744 OF 2007
( Suit is already Disposed off)
(High Court Suit No. 846 of 2007)
Shivanand Achut Kini ...Plaintiff
V/s.
Canara Bank ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N. G. SHUKLA
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.63).
DATE : 25/07/2023.
Appearance:-
Ld. Advocate Shri. U.S.Shetty for the plaintiff.
Ld. Advocate Shri. Piyush Shah for defendant.
ORDER
1. The plaintiff has taken out this notice of motion for
restoration of the S.C. Suit No. 4744 of 2007 was dismissed in default
on 02.02.2019. Defendant filed reply affidavit and strongly opposed the
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NM No.2708/2019 in
S.C. Suit No.4744/2007. 2 Order.
notice of motion.
2. I have heard Ld. Advocate for the plaintiff and Ld. Advocate
for the defendant.
3. Plaintiff is ex-employee of defendant/bank. He had filed
Suit No. 846 of 2007 for recovery of Rs.3,00,000/- as a compensation
plus amount of gratuity and provident fund initially in the Hon’ble High
Court of Bombay. Subsequently, said suit was transferred in this court
and renumbered as S.C. Suit No.4744 of 2007. When the suit was fixed
for hearing, due to the absence of plaintiff suit came to be dismissed on
default on 02.02.2019. To restore the suit, the present notice of motion
is moved.
4. Ld. Advocate for the plaintiff submitted that plaintiff had
appointed Advocate Shri Vaidya to represent him in the said suit. On
27.10.2017 issues were framed. Defendant offered for settlement and
matter was kept for settlement on 15.12.2017. Thereafter, the matter
was kept for filing of affidavit in lieu of examination-in-chief. However,
during the said period the matter was kept for consideration of
settlement. Hence, Advocate Vaidya informed the plaintiff that his
presence is not required regularly on each and every date and he will
intimate to plaintiff whenever presence of plaintiff is required.
Therefore, plaintiff did not remain present on the further dates. In
March-2019, plaintiff met to office of defendant/bank to make inquiry
of proposal of settlement and he came to know about the dismissal of
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NM No.2708/2019 in
S.C. Suit No.4744/2007. 3 Order.
the suit. Then plaintiff immediately took out certified copies and filed
the present notice of motion.
Ld. Advocate for the plaintiff further argued that Advocate
Rathi appeared on 02.02.2019 and made submission about oral
intimation to plaintiff. However, Advocate Rathi was not appointed by
the plaintiff to appear on behalf of him in the suit before court. There
was negligence of advocate Vaidya in attending the matter and
intimating the dates to the plaintiff. Plaintiff could not suffer for
negligence of advocate. Plaintiff has no deliberate negligence in not
attending dates. Plaintiff would suffer monetary loss, if suit is not
restored. Hence, Ld. Advocate for plaintiff prayed to allow the notice of
motion.
5. Ld. Advocate for the defendant argued that, plaintiff
remained absent many times when the suit was fixed for hearing.
Plaintiff had never appointed Advocate Vaidya in the suit and he had
not filed vakalatnama in the suit. No settlement talks were going on
between the parties. Even the adjournment application was not filed on
the ground of settlement when the suit is fixed for hearing. Hence, Ld.
Advocate for the defendant prayed to dismiss the notice of motion. He
alternatively prayed to impose heavy costs, if court makes the
conclusion to allow the notice of motion.
6. I have considered the submissions and perused the record.
It is undisputed fact that, suit is transferred in this court due to
enhancement of pecuniary jurisdiction of this court. Issues were farmed
in the suit on 27.10.2017 and then the matter was posed for evidence.
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NM No.2708/2019 in
S.C. Suit No.4744/2007. 4 Order.
However, record shows that during the said period the matter was fixed
for settlement. There is copy of one application dtd. 27.09.2017
addressed to the General Manager of defendant/bank by the plaintiff
which shows that discussion regarding settlement was going on
between plaintiff and officer of defendant. It also appears that one
Advocate Talkute had filed suit initially in the Hon’ble High Court and
then it is transferred. Though vakalatnama of advocate Vaidya is not
found place in the record of suit. However, roznama of the entire suit is
not in the record and therefore, it cannot be inferred that Advocate
Vaiday was not appointed by the plaintiff in the suit. There is order dtd.
02.02.2019 showing that Advocate Rathi appeared for plaintiff and
submitted to the court that earlier intimation was sent to plaintiff to
attend the court, but he has not given any response. On the basis of said
submission, suit came to be dismissed. However, plaintiff has
categorically submitted that he had not appointed advocate Rathi to
represent in the suit. In view of that it is questionable that whether
advocate Rathi was advocate on record or on the instruction by
advocate Vaidya to represent the plaintiff in the suit. It appears from
record that plaintiff is ex-employee of defendant/bank and suit is filed
for monetary relief of compensation, gratuity and provident fund. If,
suit is not restored plaintiff being the senior citizen would suffer
monetary loss. Therefore, I find that, reason given by the plaintiff is
sufficient cause for his non appearance, hence, suit deserves to be
restored. Defendant may be compensated by saddling the costs on
plaintiff for restoring the suit by allowing the notice of motion. Hence, I
pass following order :
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NM No.2708/2019 in
S.C. Suit No.4744/2007. 5 Order.
- ORDER -
1. Notice of Motion No.2708 of 2019 is allowed in terms of
prayer clause (a) and (b) subject to costs of Rs.2000/-.
2. On deposit of costs within 15 days from today, S.C. Suit
No. 4744 of 2007 be restored on the file of this court at it is
original number.
3. Notice of Motion No. 2708 of 2019 is disposed off
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :25.07.2023 Gr. Bombay.
1. Dictated on : 25.07.2023
2. Transcribed on : 25.07.2023
3. Checked and Signed on : 26.07.2023
4. Delivered to Certified :
Copy Section on
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NM No.2708/2019 in
S.C. Suit No.4744/2007. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26.07.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 25.07.2023
Judgment/Order signed by P.O. on 26.07.2023
Judgment/Order uploaded on 26.07.2023
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