Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 782/2020 in Comm. Suit No. 138/19. 1 Order.
MHCC010060112020
Presented on : 18-02-2020
Registered on : 18-02-2020
Decided on : 23-02-2021
Duration : 1 years, 0 months, 5 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 782 OF 2020
IN
COMMERCIAL SUIT NO. 138 OF 2019
M/s. AAS Udyog (Proprietorship Concern) ...Plaintiff
Versus
Union of India through (Chief Engineer)
Western Railways and Another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 23rd FEBRUARY, 2021.
None for Plaintiff.
Mr. Chetan Agrawal, Advocate for Defendant No.1.
None for Defendant No.2.
ORDER
This is a motion taken out by defendant no.1 i.e. Union of
India to condone delay of 98 days in filing W.S.
2. None for plaintiff and defendant no.2 bank. There is no
reply submitted by plaintiff and defendant no.2.
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N/m No. 782/2020 in Comm. Suit No. 138/19. 2 Order.
3. Learned Adv. Chetan Agrawal for defendant no.1 submits
that there is a clause in the agreement between plaintiff and defendant
no.1 in respect of compulsory arbitration. According to defendant no.1,
in view of said clause, this Court doesn’t vest the jurisdiction to decide
this suit. Therefore, defendant no.1 has preferred application vide
Exh.7 about tenability of the suit before this Court. However, on
01/02/2020, in view of detail order issued by this Court, application
stands rejected. On the same day, ‘no W.S.’ order has been passed by
this Court. On next date, defendant no.1 has preferred the notice of
motion to accept the written statement by setting aside the impugned
order of ‘No W.S.’ dated 01/02/2020.
4. Adv. Agrawal continued that defendant no.2 is yet not
served with writ of summons. There is no appearance of defendant
no.2. Similarly, there is no affidavit of plaintiff about service of
summons alongwith plaint and documents attached with it, at office of
defendant no.1 Defendant no.1 was under impression that in absence
of service of writ of summons, defendant no.1 is not under obligation to
file written statement. Defendant no.1 was also under impression that
in view of a specific clause in the agreement about arbitration, the suit
will not be tenable before this Court. Therefore, W.S. was not filed by
the defendant no.1. It is requested to set aside the order dated
01/02/2020.
REASONS
5. As discussed above, there is no reply of plaintiff. It is
matter of record that ‘no W.S.’ order has been issued by this Court on
the same day when Exh.7 stands rejected. It appears that there is no
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N/m No. 782/2020 in Comm. Suit No. 138/19. 3 Order.
intentional delay on the part of defendant no.1. It is necessary to note,
defendant no.1 is Union of India. Defendant no.1 has shown the
bonafides to resist the suit.
6. It would be appropriate and justiciable to decide the suit on
merit. Defendant no.1 is ready alongwith written statement. Hence,
order of no W.S. dated 01/02/2020 is set aside. On perusal of roznama,
plaintiff is continuously absent from 15/02/2020. Plaintiff is directed
to obtain proper steps for service of summons to defendant no.2.
Hence, the order :
- ORDER -
1. Notice of Motion No. 782/2020 is allowed. No order of
cost.
2. Impugned delay of 98 days is condoned. Order of ‘no W.S.’
dated 01/02/2020 is set aside.
3. Written statement is marked as Exh.8. (Defendant no.1 to
serve the copy of W.S. to the plaintiff.)
4. N/m No. 782/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 23/02/2021. Mumbai.
1. Dictated on : 23/02/2021.
2. Transcribed on : 24/02/2021.
3. Signed on : 25/02/2021.
4. Delivered to Certified :
Copy Section on
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N/m No. 782/2020 in Comm. Suit No. 138/19. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/02/2021. 5.49 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23/02/2021.
Judgment/Order signed by P.O. on 25/02/2021.
Judgment/Order uploaded on 25/02/2021.
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