Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.3009-19 Suit.2542-16
MHCC010082302019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
BOMBAY
NOTICE OF MOTION NO. 3009 OF 2019
IN
S. C. SUIT NO. 2542 OF 2016
Mr. Rajan Sharad Patankar ]
Aged 42 years, Indian Inhabitant, ]
Residing at A/204, DhuriSmruti ]
Co-operative Housing Society Ltd., ]
Krishna Township, Near Gokul Angan]
Ambadi Road, Vasai (West) ]
Palghar - 401202. ] .. Plaintiff
Versus
1. Mr. Sudhir Dinakar Patankar ]
Aged 48 years, Indian Inhabitant, ]
Shop No.2, Gunwant Chandulal Chawl]
42/44, Tardeo Road, ]
Tulsiwadi, Pt. M. M. Malviya Marg, ]
Tardeo, Mumbai - 400003 ]
2. Mr. Kiran Gunwant Patel ]
Shiv Theaters, Ashram Road, ]
Ahmedabad – 380009 ]
3. Mr. Ravinder Soni, ]
Shop No.2, Gunwant Chandulal Chawl]
42/44, Tardeo Road, Tulsiwadi, ]
Pt. M. M. Malviya Marg, ]
Tardeo, Mumbai – 400003 ] .. Defendants
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Appearances :-
Ld. Adv. Aieshwaryalaxmi Virkar for Plaintiff.
Adv. V. R. Patil for defendant No. 1.
Adv. R A Dubey for defendant No. 2.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 26/04/2024
ORDER
The present notice of motion has taken out by the
defendant No.2 for claiming reliefs inter alia:-
a) To condone the delay of 262 days in filing the written statement.
b) To allow the defendant No.2 to file the written statement and
same be accepted.
c) For such further and other reliefs as the nature and circumstances
of the case.
2. In affidavit in support, the defendant No.2 has contended
that, in November 2018, the copy of the plaint with all the documents
have been served upon him at his residential address at Ahmadabad by
registered post and since he is having business at Ahmadabad and due
to oversight, he was not informed about the said service of the suit
summons. However, on 18/07/2019, the defendant No.2 sent papers
and proceedings of this suit to him and thereafter, he engaged an
advocate on 29/07/2019 to defend him. It is further contention of the
defendant No.2 that his advocate informed him that there is delay in
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filing written statement and steps are required to be taken and then the
defendant No.2 has taken out notice of motion No.3009 of 2019 for
condonation of delay in filing his written statement.
3. According to this defendant, on 26/02/2020, his advocate
informed him that the matter proceeded ex-parte against him and
written statement can only be filed after setting aside the ex-parte order.
Thereafter, due to Pandemic, his advocate was not available in Mumbai
so the defendant No.2 could not take the steps for setting aside the ex-
parte order.
4. The plaintiff has opposed the present notice of motion by
filing reply. It is submitted that the present notice of motion is not
tenable and required to be dismissed. It is further submitted that the
defendant No.2 was served on 24/11/2016 but for 3 years and 8
months, the defendant No.2 did not bother to file the application to set-
aside the ex-parte order. It is further submitted that the defendant No.2
has also filed another notice of motion without explaining the sufficient
cause of each day delay. It is also submitted that the delay is intentional
and not bonafide. Hence, the plaintiff prays to dismiss the motion.
5. Perused the notice of motion, reply and documents. Heard
both sides.
6. Already, the ex-parte order passed by this Court against the
defendant No.2 is set aside vide order passed in Notice of Motion No.
677 of 2021. Now the defendant No.2 is seeking condonation of delay
in filing his written statement on record. It is well settled that while
dealing with the issue regarding condonation of delay, the Court has to
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adopt liberal approach with a view for giving fair opportunity to the
party to set up his defence. Considering this aspect, the delay needs to
be condoned for filing written statement. Hence, I proceed to pass
following order:-
ORDER
1. The Notice of Motion No. 3009 of 2019 is hereby allowed in
terms of prayer clause (a) and (b).
2. The written statement of the defendant no. 2 be taken on
record after the compliance in Notice of Motion no. 677 of 2021.
3. Costs in cause. 4. The Notice of Motion No. 3009 of 2019
stands disposed off accordingly.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 26/04/2024 C.R. No.03
Dictated on : 26/04/2024
Typed on : 30/04/2024
Signed on : 02/05/2024
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“Certified to be true and correct copy of the original signed order”.
02/05/2024
at about 4.00 p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma,
Judge, Bombay City Civil Court &
Addl. Sessions Judge,
Court Room No.03, Gr. Bombay
Date of pronouncement of
Order
: 26/04/2024
Order signed by Hon'ble13 pt
Judge on
: 02/05/2024
Order uploaded on : 02/05/2024
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