Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.2429/2018 in Suit No.1102/2015
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2429 OF 2018
(CNR NO. MH CC010078502018)
IN
S.C.SUIT NO. 1102 OF 2015
(CNR NO. MH CC010041272015)
Shyam Dharamdas Amlani ]
Aged 65 years, Occupation : Retired ]
Indian Inhabitant of Mumbai, ]
residing at Flat No.19, 1st Floor, ]
Mehta Mansion, Shitladevi Temple Road, ]
Mahim, Mumbai 400 016. ].. Plaintiff.
V/s.
1 Ram s/o Udhavdas Kamwani, ]
Age 47 years, Occupation : Business, ]
Residing at 402, Mangalam Apartments, ]
Khare Town, Dharampeth, Nagpur, ]
Nagpur – 440 010. ]
2 Rewachand Jeomal Amesar, ]
Age 77 years, Occupation : Business, ]
Residing at Nagpur and having his ]
Address at Dheeraj Trader, Opp: Central ]
Bank of India, Maskasath, Itwari, ]
Nagpur – 440 002. ]
3 The Mehta Mansion Cooperative ]
Housing Limited, a registered Society, ]
Bearing Registration No.B1417 and ]
having its establishment at Sitladevi ]
Temple Road, Mahim, Mumbai 400 016. ]..Defendant.
Advocate Mr. R. S. Tripathi for defendant nos.1 and 2.
Advocate Mr. S.C. Jodhavat for the plaintiff.
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2 N/M No.2429/2018 in Suit No.1102/2015
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 19th SEPTEMBER 2018
ORAL ORDER
This Notice of Motion has been taken out by defendant
no.1 for condonation of delay in filing written statement and for taking
on record written statement.
2 In support of notice of motion, defendant no.1 has filed his
affidavit, wherein he has stated that he was served with the Notice of
Motion and plaint, but he was not aware whether the writ of summons
is served upon him at the time of service of notice of motion.
3 It is further averred that when defendant no.1 received
copy of the plaint and notice of motion, he prepared written statement
and the same got notarized on 23.09.2015. Original written statement
dated 23.09.2015 was handed over to his previous advocate. His
original written statement was not filed due to oversight and notice of
motion was listed for hearing at very inception.
4 When his advocate was not present, the Court has passed
no written statement and reply order on 25.01.2018. He has taken
discharge from his previous advocate due to certain reasons and
engaged new advocate, who came to know on 11.06.2018 in respect of
order dated 25.01.2018. Though his written statement was ready for
filing, since the plaintiff and defendant no.2 used to have talk for
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3 N/M No.2429/2018 in Suit No.1102/2015
settlement without prejudice and it was informed by his previous
advocate and due to oversight of his previous advocate, the written
statement could not be filed, which resulted into for passing of the
order against him. Thus, there is sufficient cause exists for condonation
of delay. Hence, prayed for allowing notice of motion.
5 The plaintiff has filed affidavit in reply and resisted the
notice of motion. It is contended that at the adinterim stage the then
advocate of defendant no.1 waived the service of writ of summons for
defendant no.1 and matter was kept for written statement and reply to
notice of motion no.1762/2015. Defendant no.1 was fully aware about
the service of wit of summons. It was duty of defendant no.1 to inform
his advocate about filing of written statement and reply.
6 The plaintiff has denied that defendant no.1 is having
bonafide excuse for not filing the written statement and denied that
original written statement dated 23.09.2015 was handed over by him to
his then advocate. There is delay of two years and nine months in filing
the written statement and it is due to negligence of defendant no.1.
Hence, prayed for dismissal of notice of motion with heavy costs.
7 Heard the learned advocate for defendant no.1 and the
learned advocate for the plaintiff. Perused reasons stated in suppot of
notice of motion by defendant no.1. No doubt, defendant no.1 has filed
on record notarized copy of written statement along which affidavit in
support of notice of motion. It discloses that in September 2015, the
said written statement was notarized before the Notary. That means in
September 2015, written statement was ready. In this background,
reasons stated by defendant no.1 are reasonable to believe and accept.
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4 N/M No.2429/2018 in Suit No.1102/2015
Thus, it appears that due to oversight, previous advocate of defendant
no.1 has failed to file written statement of defendant no.1 on record.
8 In the above background, in order to decide real
controversial issues involved in the suit on merits, it is just and
necessary to give opportunity to defendant no.1 to defend the suit by
filing written statement. In the facts and circumstances, considering the
reasons stated in paragraph nos.2 and 3 of an affidavit, I hold that the
defendant has shown sufficient cause to condone the delay in filing
written statement. If notice of motion is allowed no prejudice would be
caused to the plaintiff.
9 While condoning the delay caused at the hands of
defendant no.1, the plaintiff is necessary to be compensated in terms of
money, by imposing heavy costs on defendant no.1, in view of delay
caused in decision of the suit. Therefore, while allowing notice of
motion, it is just and proper to impose costs upon defendant no.1.
Thus, in the interest of justice and with view to avoid multiplicity of the
proceedings and also with view to decide real controversial issues
involved in the suit on merits, notice of motion is to be allowed. With
this, I proceed to pass the following order:
ORDER
Notice of Motion No.2429 of 2018 is made absolute in
terms of prayer clause (a) and (b) subject to the payment of costs of
Rs.3500/ (Rupees Three Thousand Five Hundred only) payable by
defendant no.1 to the plaintiff on or before next date.
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5 N/M No.2429/2018 in Suit No.1102/2015
2 On payment of costs, already tendered written statement
by defendant no.1 be taken on record.
3 Notice of Motion No.2429 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 19/09/2018. City Civil Court,
Gr. Bombay.
Dictated on : 19/09/2018
Transcribed on : 21/09/2018
Signed on : 24/09/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/09/2018 At 3.15 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
19/09/2018
Judgment/Order signed by P.O. on 24/09/2018
Judgment/Order uploaded on 24/09/2018
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