Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2711 OF 2019
IN
S.C.SUIT NO.4692 OF 2008
1. Shridhar Iyer & Anr. ....Plaintiffs
V/s
HDFC Ltd. & Ors. ....Defendants
APPEARANCE:
Advocate Pranjali Bhandari for plaintiff.
Advocate Shweta Satardekar i/b Sanjay Udeshi & Co for defendant
no.1.
Adv Mansi Jaiswar for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A.BHOSALE
(COURT ROOM NO. 32)
DATE : 30th August, 2019
ORDER
1. Perused Notice of Motion and affidavit submitted by defendant
no.2. It is submitted that plaintiff has filed suit for declaration and
injunction against defendant nos.1 and 2. He is contesting defendant
and diligently attending his suit personally. It is further submitted that
on 11/3/2019 matter was posted for cross examination. However, the
evidence on the side of defendant no.1 is closed by the Court. He
further submitted that Jr.Advocate who was appearing on behalf of him
could not understand the proceeding properly and order was passed
against the defendant no.2. It is further submitted that he is the only
contesting defendant and inadvertent mistake was committed by
Jr.Counsel his opportunity to adduce evidence was taken away. If the
suit is decided without cross examination of defendant no.2 then great
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prejudice has been caused to his case. Lastly, it is prayed that Notice of
Motion may be allowed and defendant no.2 may be permitted to cross
examine plaintiff witness.
2. Notice of Motion opposed by plaintiff by filing reply and denied
the contention in toto. It is contended that the plaintiff has filed
evidence in the year 2014 thereafter, on 09/01/2019 all the parties are
present before the Court and matter was adjourned. Thereafter on
01/02/2019 order on admissibility on document were passed and
matter was posted for cross examination for defendant on 11/03/2019.
On that day, Jr. Advocate is present before the Court and matter was
kept back and again called out but no one is present and Court was
passed no cross examination order against defendant no.2. Thereafter,
several dates were given however, no one appeared on behalf of
defendant no.2. Thus the averment in the Notice of Motion is ill
conceived and liable to be dismissed with cost.
3. I have heard Ld.Counsel for both sides. Perused entire record.
Suit is filed by plaintiff against defendant nos.1 and 2 for declaration
and injunction. Defendant no.1 is Housing Development Corporation
Finance Limited. Defendant no.2 has applied to the first defendant
company for transferred share on the plaintiff on standing in plaintiff
name in the record of first defendant company based on forged transfer
deed. Admittedly as per the record the suit is posted for cross
examination of defendant on 11/03/2019. Wherein the defendant are
absent and necessary order were passed by the Court. Afterward
several dates the defendant are absent and suit is proceed for passing
order. Thereafter the defendant filed Notice of Motion for setting aside
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order dated 11/03/2019.
4. I have perused reason mentioned in the Notice of Motion. It is
submitted by the defendant no.2 that because of inadvertent mistake on
the part of Jr.Advocate he could not cross examine plaintiff witness.
But this reason is not sufficient, it is the duty of defendant no.2 to
appear before the Court and put forth his defence by way of cross
examination. I have stated above suit is filed by plaintiff for declaration
and injunction and certain relief claim against defendant nos.1 and 2
and defendant no.2 resisted claim of plaintiff by filing of written
statement. Certainly, defendant no.2 want to put his case before the
Court and therefore, one opportunity be given to the defendant by
recalling order. Thus, it is necessary to grant one opportunity to the
defendant to conduct cross examination to decide the matter on merit. I
am of the opinion that in the interest of Justice, the application
deserves to be allowed. However, the matter is pending and adjourned
on account of defendant no.2, therefore, he is liable to pay cost. Hence,
I pass following order.
ORDER
1. Notice of Motion No.2711 of 2019 is allowed.
2. No cross order dated 11/03/2019 is set aside subject to payment
of cost of Rs.2,000/.
3. Cost amount be given to the plaintiff.
4. Defendant no.2 is directed to comply order within two weeks.
5. After compliance plaintiff is directed to remain present before the
Court for cross examination.
6. Failure on the part of defendant no.2 to comply this order within
two weeks the order passed by this Court stands automatically
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vacated.
Date: 30/08/2019 (Milind A.Bhosale)
Adhoc Judge,
City Civil & Sessions Court,
Gr.Bombay.
Dictated on : 30/08/2019
Typed on : 30/08/2019
HHJ signed on : 30/08/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
30.08.2019 at 4.45 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
30.08.2019
JUDGMENT/ORDER signed by P.O. on 30.08.2019
JUDGMENT/ORDER uploaded on 30.08.2019
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