Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3294/2019 ..1.. InS.C.Suit No.1662/2015
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3294 OF 2019
IN
S.C. SUIT NO. 1662 OF 2015
CNR NO : MHCC010089672019
Mr. Shamim Iqbal Khamker,
Through Constituted Attorney
Mr. Mansoor Ali Khan ...Plaintiff
Versus
1. Mr. Mustaqeem Khalil and Ors., ...Defendants
Appearance :
Mr. I. A. Khan, Advocate for the Plaintiff.
Mr. G. B. Naik, Advocate for defendant No. 3.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 23RD MARCH, 2021.
ORAL ORDER
By this notice of motion, defendants No. 3 has sought to
condone the delay in filing the notice of motion as well as written
statement coupled with relief of setting aside the order of no
written statement order dated 11.04.2019.
2. In brief, his case is that, defendant No. 3 is a company
which has received a writ of summons in the month of December
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2018. Its director approached the advocate for filing written
statement, who was asked to bring the documents. The
documents were with defendants No. 1 and 2 who were erstwhile
owners of the suit property. He was told that, defendant No. 2 is
staying at London and the documents are with him. Meanwhile,
he lost one of his relatives and could not meet his advocate. He
also could not supply the documents to his advocate to file the
written statement. He came to Mumbai in May 2019, but there
was summer vacation and so could not contact his advocate. He
is also facing multiple litigations. That has also resulted in delay
in not filing the written statement within time. If the delay is not
condoned, he will suffer irreparable loss. Though the suit was
filed in the year 2015 writ of summons was lodged in the year
2018 that too not in accordance with the law. After coming back
in June’ 2019 the director of defendant No. 3 contacted his
advocate. He took time as documents are more than 40 years
old. The delay is not intentional and be condoned.
3. The plaintiff has replied the notice of motion and submitted
that defendant No. 3 is served with writ of summons. He has
suppressed material facts from the Court and on false contentions
misguiding the Court. Nothing is there on record to indicate that,
the defendant No. 2 was at London. Defendant No. 3 has not
come with clean hands. Defendant No. 3 had attended the
proceedings on ample occasions. This Court has granted him
ample opportunities and so the delay cannot be condoned.
4. The proceedings indicate that, defendant No. 3 is
participating in the proceedings since 04.10.2016. He has
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contested the notice of motion taken out by the plaintiff. This
was done even before service of writ of summons which came to
be served on 30.11.2018.
5. What appears is that defendant No. 3 did not shy away
from participating in the proceedings even since prior to the
service of writ of summons upon him. In such circumstances,
there appears no dishonest intention on the part of defendant No.
3 to delay the proceedings. Had there been any such intention on
the part of defendant No. 3, he would not have appeared before
the Court and participated in the proceedings. This indicates that
the reasons put forth by defendant No. 3 can be believed to the
extent that, he was dependent on defendants No. 1 and 2 for
procuring the documents in support of his defense to file the
written statement. Considering this aspect and considering the
amount of delay alleged, to my mind defendant No. 3 can be
given an opportunity to file the written statement on record and
to contest the suit. No harm or prejudice will be caused to the
plaintiff. The delay caused in filing written statement can be
compensated by imposing cost on defendant No. 3. In the result,
I pass following order:
ORDER
1. Notice of Motion No. 3294/2019 is allowed in
terms of prayer clause (a), (b) and (c) subject to
cost of Rs.4,000/ payable by defendant No. 3 to the
plaintiff with four weeks from the date of uploading
of the order.
2. On compliance of clause No. 1 above, written
statement of defendant No. 3, if already filed, be
taken on record.
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3. If written statement of defendant No. 3 is not
already filed with notice of motion, defendant No. 3
shall file it within four weeks from the date of
uploading of this order.
4. Notice of Motion No. 3294/2019 is disposed of
accordingly.
(AJIT N. MARE)
Judge,
Date : 23.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 23.03.2021
Transcribed on : 24.03.2021
HHJ Signed on : 30.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.03.2021 4.46 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 23.03.2021
Order signed by P. O. on 30.03.2021
Order uploaded on 31.03.2021
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