Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3282 OF 2019
IN
S.C. SUIT NO.1818 OF 2019
IDBI Bank Limited ] ...Plaintiffs
Versus
1. M/s. More Travels, ]
Prop. Eknath More & Ors. ] ...Defendants.
Appearances :
Mr. A. W. Barve, Ld. Adv. for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 17th January, 2020
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion to set aside
Order dated 20.07.2019 dismissing the suit for want of prosecution and
to restore the suit.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion. Heard Learned Advocate for plaintiff.
MHCC01-008933-2019
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3. In brief, it is contentions of the plaintiff that, plaintiff Bank
has filed this suit for recovery of amount as detailed mentioned in the
plaint. The suit was proceeded for recording of evidence on
30.04.2019. On 30.04.2019 Manager of the plaintiff Bank did not
remain present before the Court due to difficulty in the Branch. The
Manager of the plaintiff Bank informed about his inability to attend the
Court on 30.04.2019. Consequently, the Advocate of plaintiff requested
on 30.04.2019 to the Court to grant adjournment. The then Presiding
Officer adjourned the matter on 30.04.2019 that the matter will be for
dismissal order on next date i.e. on 20.07.2019. Thereafter matter
posted on 20.07.2019 for dismissal order. The matter adjourned from
30.04.2019 to 20.07.2019. Plaintiff's Advocate by mistake heard date
22.07.2019 in place of 20.07.2019, therefore, the plaintiff's advocate
could not remain present with Branch Manager of the plaintiff Bank on
20.07.2019 before the Court. On 20.07.2019 the suit is dismissed for
want of prosecution. On 22.07.2019 plaintiff's advocate and Branch
Manager of the plaintiff were present in the Court Room to lead
evidence. Therefore, considering the public money involved in the suit
the said order be set aside and plaintiff be permitted to lead evidence.
4. Perused Order 9 Rule 3 of the CPC. As per the said Rule
where neither party appears when the suit is called on for hearing, the
Court may make an order that the suit be dismissed.
5. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
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Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
6. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
7. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
8. Perused plaint. Considering the contents of the plaint and
ground mentioned in the Notice of Motion, I am of the opinion that
absence of Manager of the Plaintiff Bank on 20.07.2019 before the
Court was not intentional.
9. The suit was dismissed for want of prosecution on
20.07.2019. This Notice of Motion presented before the Court on
08.08.2019. It means this Notice of Motion is filed within 30 days from
the date of dismissal of the suit. Hence I am of the opinion that the
Order of the dismissal dated 20.07.2019 can be set aside and plaintiff
can be permitted to lead evidence. I am of the further opinion that in
the interest of Justice Notice can be issued to all the three defendants
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to remain present before this Court. Hence following order:
ORDER
Notice of Motion No.3282/19 is allowed as under :
1. Order of dismissal of Suit for want of prosecution dt.20/07/2019
is hereby set aside.
2. Plaintiff is directed to remain present before this court on
17/02/2020 at 11.00 am and lead evidence.
3. Plaintiff is directed to issue notice to all the defendants informing
them that the suit is restored and posted for leading evidence of
plaintiff.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 17/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 17/01/2020.
Transcribed on : 20/01/2020.
Signed on : 21/01/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.01.2020 at 03.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 17.01.2020
Judgment/order signed by P.O. on 21.01.2020
Judgment/order uploaded on 21.01.2020
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