Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3075-2019 ORDER 1
MHCC010084032019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3075 OF 2019
IN
S.C.SUIT NO.568 OF 2012
Ashwini C.Thakkar & ors. … Plaintiffs
Vs.
Executive Engineer, Housing Board,
Ghatkopar DIvision & ors.
… Defendants
Appearances:
Ld.Adv.Mr.Yash Mishra for plaintiff.
Ld.Adv.Mr.Kandekar for Defendant no.1.
Ld.Adv.Ms.Savita Suryavanshi for Defendant no.2 and 4.
Ld.Adv.Mr. Kudalkar for Defendant no.6.
Ld.Adv.Mr. Lalla for Defendant no.7.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.09)
DATE : 13th October 2021
ORDER
1. This Notice of Motion is filed by defendant no.7 Yomesh Rao. He
submitted that the society has opted for redevelopment project. He has
submitted his resignation to the society on 18/5/2013. Thereafter
another Architect was appointed in the project. So, this defendant was
not in connection with the project. Therefore, there is delay in filing the
written statement on record. As per the statement of defendant no.7
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NM No.3075-2019 ORDER 2
there is 7 years and 5 months delay in filing written statement on
record. He stated that the delay is not deliberate, it is because of facts
on record. Therefore, he requested to allow him to file written
statement.
2. The plaintiff filed reply and strongly opposed Notice of Motion.
The plaintiff submitted that the defendant no.7 is not explained any
reason for such long delay i.e. 7 years and 5 months. The suit is
proceeded ahead . It is pending for admission and denial of documents.
So, this Notice of Motion is filed just to delay the trial. Whatever the
reason given by defendant no.7 for delay is at not acceptable. In support
the plaintiff relied upon ratio of Hon’ble Supreme Court, in Balwant
Singh Vs. Jagdish Singh & Ors.(Civil Appeal No.1166 of 2006), decided
on July 8, 2010. In which the Hon’ble Supreme Court held that Section
5 of the Limitation Act, in such a manner and so liberally irrespective of
the period of delay it would amount to practically rendering all those
provisions redundant and inoperative. Such approach or interpretation
would hardly be permissible in law. Accordingly the plaintiff strongly
opposed Notice of Motion.
3. The plaintiff has filed suit for declaration and injunction against
defendant no.1 to 7. As per statement of the plaintiff the defendant no.7
had issued letter to defendant no.4 developer certifying that the carpet
area including balcony and door jambs of the proposed flats for the
members of the society work out to 390 sq.ft., on true and correct copy
of the certificate dated 28/12/11 in plaint page no.15. The plaintiff
submitted that defendant no.7 is only a licensed surveyor appointed
under Section 355 of the MMC Act and he is not Architect. Even though
he has issued ‘Plot Area Certificate’ falsely personating himself as an
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NM No.3075-2019 ORDER 3
architect. In prayer clause plaintiff sought declaration that the
certificate issued by defendant no.7 be declared as null and void.
Considering allegations against defendant no.7, relief sought by plaintiff
in the plaint against defendant no.7. Prima facie, it appears that
defendant no.7 is necessary party in the suit. The plaintiff has made
allegations against defendant no.7 that he has issued false certificate.
Accordingly, he has asked to declare that certificate as null and void.
Considering allegations, relief sought, it appears that one opportunity
needs to be granted to defendant no.7 to contest the suit by putting his
side on record. If the defendant no.7 is permitted to put his side on
record, certainly court would decide the suit on merit and both the
parties will get sufficient opportunity to contest the suit.
4. Though, it is so, but the delay caused on record is too long that is
7 years and 5 months. Roznama discloses that plaintiff has filed
affidavit of evidence on 26/3/2019, the suit was posted for verification
and cross examination of PW no.1. Meanwhile, it was posted for
admission and denial of documents filed by plaintiff. As per statement
of plaintiff the suit will be dragged down if defendant no.7 is permitted
to file Written Statement. Certainly, it will be for additional issues and
again court would have to grant opportunity to plaintiff to lead
evidence. Certainly, this will take time, ultimately it would cause delay
in trial. The reason given by defendant no.7 is not acceptable because
he was having knowledge that plaintiff has filed suit against him. In
such circumstances, he would have filed written statement within
stipulated time. The delay caused by defendant no.7 is too long which is
without sufficient reason. In such circumstances, if defendant no.7 only
permitted to file written statement in the interest of justice, then he
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would have to compensate the delay with costs. Accordingly, following
order is passed:
ORDER
1. Notice of Motion No.3075 of 2019 is made absolute
subject to costs of Rs.10,000/- to the plaintiff.
2. After payment of costs defendant no.7 is permitted
to file Written statement.
3. Notice of Motion No.3075 of 2019 stands disposed
of accordingly.
(C.V. PATIL)
Ad-hoc Judge,
Date : 13/10/2021 City Civil Court, Gr. Bombay
Dictated on : 13/10/2021,
Transcribed on : 20/10/2021,
HHJ signed on : 20/10/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
20/10/2021 5.55p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 09)
Date of Pronouncement of JUDGEMENT
/ORDER
13/10/2021
JUDGEMENT /ORDER signed by P.O. on 20/10/2021
JUDGEMENT /ORDER uploaded on 20/10/2021
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