Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 4 in Comm. Suit 769/2021
ORDER BELOW EXHIBIT 4
IN
NOTICE OF MOTION NO. 2821 OF 2019
IN
COMMERCIAL SUIT NO. 769 of 2021
The Cooperative Bank Employees Union, Mumbai ...Plaintiff
Versus
Abhudaya Cooperative Bank Ltd. & Ors. ….Defendants
Appearance:
Adv. Vinod Tayade for Defendant Nos. 3 and 4.
Adv. K.P. Anilkumar for Defendant Nos. 2 and 5
Adv. A.S. Peerzada for Plaintiff.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 12th DECEMBER 2022
ORDER
This is an application filed by the defendant no. 4 for
setting aside no reply order dated 18.11.2021. It is submitted by the
defendant no. 4 that the Notice of Motion was fixed for reply on various
dates during pandemic period. Due to various compliance and was
engaged in overburden activity in the Abhyudays Bank, the defendant
no. 4 was unable to attend the Court and to tender the reply. The
defendant no. 4 submitted that he is ready with reply to the Notice of
Motion along with this application for condonation of delay. Hence, it is
prayed that the delay be condoned and the reply on behalf of defendant
no. 4 be taken on record.
2. The plaintiff filed say below this application and he has no
objection for allowing this application.
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2 OBE 4 in Comm. Suit 769/2021
3. The defendant no. 2 filed reply at Exh.6 and resisted the
application on the ground that the application is not in proper format. It
is submitted that Mr. Raghunath Tawade was present in the Annual
General Meeting dated 12.07.2013. He has lied before the Court in his
present affidavitinreply. Lastly, the defendant no. 2 prayed for
dismissal of the application.
4. Heard Learned Advocate Vinod Tayade for Defendant Nos.
3 and 4, Learned Advocate K.P. Anilkumar for Defendant Nos. 2 and 5
and Learned Advocate A.S. Peerzada for Plaintiff.
5. By this application, the defendant no. 4 prayed that the
order of no reply dated 18.11.2021 be set aside and the defendant be
allowed to tender reply to the Notice of Motion. It is seen from the
record that the Notice of Motion No. 2821 of 2019 was filed by the
plaintiff in the year 2019. Thereafter, the matter was adjourned for
filing reply by the defendant. When the matter was pending for reply of
the defendant, at that time, there was period of pandemic, there were
certain restrictions. The functioning of the Court was also restricted.
The Hon'ble Supreme Court in suo moto Writ Petition No. 3 of 2020
dated 23.09.2021 give direction that for computing the period of
limitation in the application/proceeding, the period from 15.03.2020 till
02.10.2021 shall stand excluded. So also, by order dated 10.01.2022
again the Hon'ble Supreme Court extended the period of limitation till
28.02.2022. The order passed in suo moto Writ Petition No. 3 of 2020 is
applicable to the proceeding before the Commercial Courts. In view of
the same, as the limitation is excluded, the defendant needs to be given
permission to file reply to the Notice of Motion. Moreover, the plaintiff
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3 OBE 4 in Comm. Suit 769/2021
has no objection for allowing the Notice of Motion. Therefore, there is
no hurdle to allow the application. The defendant no. 2 has objected
this application by filing reply. In my view, the Notice of Motion was
filed by the plaintiff against the defendant. Therefore, the defendant no.
2 has no locus standi to challenge this application filed by the defendant
no. 4. In the present case, the defendant no. 4 has mentioned sufficient
grounds in his application for condonation of delay. The said delay is
not major one. For deciding the matter on merit, the defendant no. 4
needs to be given an opportunity to file reply to the Notice of Motion,
otherwise, the defendant no. 4 will suffer irreparable loss, which cannot
be compensated in terms of money. The said delay is not intentional or
malafide one. Hence, in the interest of justice, the delay needs to be
condoned and no reply order dated 18.11.2021 needs to be set aside.
Hence, I pass following order :
ORDER
1) Application at Exh. 4 in commercial Suit no. 769 of
2021 is allowed.
2) The order of no reply dt. 18.11.2021 passed against
defendant No. 4 is set aside.
3) The defendant No. 4 is permitted to file affidavit in
reply to the Notice of motion no. 2821 of 2019.
4) Order accordingly
Dated : 12.12.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 12.12.2022
Typed on : 15.12.2022
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4 OBE 4 in Comm. Suit 769/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
15.12.2022 4.30 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.
12.12.2022
Judgment/order signed by P.O on 15.12.2022
Judgment/order uploaded on 15.12.2022
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