Interim Order 5

Order Details: Notice of Motion
Pdf Text: NM No. 101082 / 2023
Ashok - Rajesh
Order (Exh.6)
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City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010030282023
Notice of Motion Filed :
14.03.2023
Arguments heard :
24.04.2024
Decided on :
24.04.2024
Duration : 01 Y, 01 M, 10 Days
Exhibit No.6
Commercial Suit No. 100134 / 2019
Notice of Motion No. 101082 / 2023
Plaintiffs 1 M/s. Ashok Commercial Enterprises.
2 Ramesh Uttamchand Ramchandani.
VERSUS
Defendant : Rajesh Jugraj Madhani
Appearances
Plaintiff
: Adv. Ms. Neuty Thakkar
Defendant
: Adv. Shri Hardik Desai.
Notice of Motion for setting aside Order Dt. 01.11.2022.
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ORDER
(Pronounced on this 24th Day of April, 2024)
Defendant has filed present Notice of Motion for setting
aside Order Dt. 01.11.2022, whereby the right of defendant to file
admission and denial was closed by the Court.
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NM No. 101082 / 2023
Ashok - Rajesh
Order (Exh.6)
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Case of plaintiff :
2) Plaintiff No. 1 M/s. Ashok Commercial Enterprises is
registered partnership firm of plaintiff No. 2 Ramesh Uttamchand
Ramchandani, Mumbai, Maharashtra, (hereinafter,
Plaintiffs /
P1 / P2). Plaintiffs are in business of property and financing.
Rajesh Jugraj Madhani, Mumbai, Maharashtra,
(hereinafter,
Defendant) is Director of M/s. Mighty Construction.
3) To overcome immediate financing crisis, defendant
requested .	₹ 50,00,000/- from plaintiff. Accordingly, on
27.05.2015, plaintiff advanced said financial help through RTGS.
On 05.08.2015, defendant acknowledged the liability
and issued two cheques, Dt. 30.10.2015 for .	₹ 50,00,000/-
(principal amount) and .	₹ 2,33,333/- (interest). However, both
cheques were dishonoured for insufficiency of funds. Hence,
plaintiff preferred present Commercial Suit No. 100134 / 2019
for recovery of .	₹ 90,24,460/- with interest @ 12 % per annum.
Chronology in the Suit :
4) Perusal shows that, after Suit was filed on 27.09.2019,
the
relevant dates and
court business, is as follows :
Date
Events
09.09.2019 Suit is filed.
22.11.2019 Summons for Judgment is filed.
06.02.2020 Defendant appeared.
10.03.2021 Written Statement of defendant came on record
(Notice of Motion No. 841 / 2020 is allowed).
11.08.2021 Summary Judgment is rejected.
Suit is adjourned for framing of issues.
30.08.2021 Suit is adjourned for framing of issues.
21.09.2021 Suit is adjourned for framing of issues.
22.11.2021 Suit is adjourned for framing of issues.
28.01.2022 Suit is adjourned for admission and denial.
03.03.2022 Suit is adjourned for admission and denial.
30.03.2022 Suit is adjourned for admission and denial.
13.06.2022 Suit is adjourned for admission and denial.
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NM No. 101082 / 2023
Ashok - Rajesh
Order (Exh.6)
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22.07.2022 Suit is adjourned for admission and denial.
11.08.2022 Suit is adjourned for admission and denial.
12.09.2022 Suit is adjourned for admission and denial.
07.10.2022 Suit is adjourned for admission and denial.
01.11.2022
Plaintiff filed admission and denial.
My Learned Predecessor observed that, defendant
failed to file admission and denial. Hence, he
directed the Suit to proceed without admission and
denial of defendant.
Suit adjourned for framing of issues.
14.03.2023
Notice of Motion No. 101082 / 2023 filed by
defendant for setting aside Order Dt. 01.11.2022.
Notice of Motion No. 101083 / 2023, filed by
defendant for rejection of the Plaint.
Notice of Motion No. 101082 / 2023 (Exh. 6, Dt. 14.03.2023) :
5) Through this Notice of Motion, defendant claimed that,
it is necessary for defendant to bring its admission and denial.
Else, defendant will suffer serious prejudice. Delay occurred in
filing admission and denial is not deliberate. Most importantly,
the Court is yet to frame the issues.
Plaintiff, through reply at Exh.8 (14.09.2023), opposed
the Notice of Motion.
Points for determination :
6) Heard Learned Counsels. Perused Record. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Is defendant entitled for setting
aside Order Dt. 01.11.2022?....... In the Affirmative.
2. What Order?................................ As per final Order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
7) If any party, for technical reasons, is deprived of raising
its case, then it may result in improper adjudication. That may
lead to complexity and multiplicity of litigation. It then drags the
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NM No. 101082 / 2023
Ashok - Rajesh
Order (Exh.6)
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parties into further litigation, causing serious prejudices to them.
Hence, it is always in interest of justice that, contesting parties
are provided sufficient opportunities to raise their contentions.
8) Though right of defendant to file admission and denial
was closed by the Court on 01.11.2022, however, thereafter till
date, because of pending Notices of Motion, Issues could not be
framed. As Issues are yet to be framed, then defendant can be
permitted to file, admission and denial.
9) However, considering delay caused (30.08.2021 to
14.03.2023), cost is justified. In given facts and circumstances,
cost of .	₹ 3,000/- would be just, legal and proper. Hence, Points
are so answered and Notice of Motion is disposed off, by
following Order :
ORDER
1. Notice of Motion No. 101082 of 2023, is allowed,
subject to Cost of . 3,000/- ( . Three Thousand Only).
₹
	₹
2. Defendant shall pay said Cost by next date.
3. If defendant pays the Cost to plaintiff by next date, then
delay caused to defendant, in filing his Admission and
Denial shall stand condoned. Then, the Admission and
Denial be taken on record, forthwith.
4. If defendant fails to pay the Cost, then the Suit shall
proceed further.
5. Parties be informed about their right to challenge this
Order and period of limitation for it.
6. Order pronounced in Open Court.
7. Record of Notice of Motion shall be part of main
Commercial Suit No. 100134 / 2019.
Mumbai
Dated : 24.04.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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