Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 20 in Comm. Suit 274/2021
ORDER BELOW EXHIBIT 20
IN
COMMERCIAL SUIT NO. 274 of 2021
CNR NO. : MHCC010075552018
Canara Bank ...Plaintiff
Versus
M/s. Phoenix Travels
Through Prop. Mr. Hanan Samad Pagarkar ….Defendant
Appearance: `
Adv. Satish Nikhar for Defendant.
Adv. Fatima Lakdawala for Plaintiff.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 4st FEBRUARY 2023
ORDER
This is an application filed by the defendant under Section
35B of the Code of Civil Procedure for causing delay by the plaintiff
without sufficient reason. It is submitted by the defendant that vide
order dated 11.11.2021, the plaintiff was directed to supply the copies
of the plaint and document to the defendant, but the said order was not
complied by the plaintiff. The specific reason has not been shown by the
plaintiff before the Court. Hence, the defendant prayed that the plaintiff
be directed to show sufficient cause for delay and the plaintiff be
ordered to pay expenses to the defendant. Inspite of giving sufficient
opportunity, the plaintiff failed to file reply to the application. Hence,
the application proceeded without reply of the plaintiff.
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2 OBE 20 in Comm. Suit 274/2021
2. Heard Learned Advocate Satish Nikhar for the defendant
and Learned Advocate Fatima Lakdawala for Plaintiff. Perused the
contents of the application.
3. By filing the present application, the defendant contended
that the plaintiff be directed to show sufficient cause for delaying the
matter and the plaintiff be directed to pay the expenses to the
defendant. According to the defendant, the plaintiff has not provided
the copies of the plaint and documents. It is seen from the record that
the defendant has filed the counterclaim and the same was rejected by
the Court on 30.03.2022 and the counterclaim is treated as Written
Statement of the defendant. It means that the defendant has already
filed the Written Statement on record. As the copies of the plaint and
documents were supplied to the defendant, the defendant has filed the
Written Statement on record. In August 2022, the defendant has moved
this application and contended that the copies of plaint and documents
were not supplied. The contention of the defendant that the copies of
the plaint and documents were not supplied to the defendant is not
acceptable one.
4. The defendant prayed that the plaintiff be directed to show
sufficient cause for delaying the matter and the plaintiff be directed to
pay the expenses to the defendant. In the present case, the plaintiff is
ready to file his affidavit of examinationinchief. But due to pendancy
of the application filed by the defendant, the plaintiff could not file his
affidavit of examinationinchief. In my view, as the plaintiff is ready to
lead the evidence, it will not be proper to direct the plaintiff to pay the
expenses to the defendant. Moreover, this application is not supported
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3 OBE 20 in Comm. Suit 274/2021
by any affidavit. Applicatin is Vague one. Section 35B is an extreme
penalty and it should not be imposed unless the case squarely falls
within the four corners of the Section. The defendant has not shown
that plaintiff deliberately delayed the proceeding. Hence, I find no
substance in the application. Hence, I pass the following order :
ORDER
1) Application at Exh.20 in Commercial Suit No. 274 of
2021 stands dismissed.
2) Order accordingly
Dated : 04.02.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 04.02.2023
Typed on : 10.02.2023
checked & signed by HHJ on : 01.03.2023
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4 OBE 20 in Comm. Suit 274/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01.03.2023 5.47 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
04.02.2023
Judgment/order signed by P.O on 01.03.2023
Judgment/order uploaded on 01.03.2023
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