Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3390-19 in SC. Suit no. 1866-15
1 Date : 18.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3390 OF 2019
IN
S.C. SUIT NO. 1866 OF 2015
(CNR NO.MHCC010092722019)
Shri. Tatya Salunkhe .. Plaintiff
Versus
Shri. Balu Namdeo Salunkhe .. Defendant
Appearances :
Adv.Vinodkumar Yadav for plaintiff present.
Defendant and his advocate absent.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 18.09.2019
ORDER
1. The defendant filed instant Notice of Motion for condonation
of delay in filing Written Statement and to set aside order dated
26.04.2019 by which this Court proceeded without Written
Statement of the defendant.
2. It is contended by the defendant that he has received the
notice in respect of Notice of Motion filed by the plaintiff. He has
contested the Notice of Motion which was subsequently dismissed
for want of prosecution. It is contended by the defendant that he
has not been served with the Writ of Summons and he has
appeared in the matter by the letter dated 24.08.2015 issued by
the plaintiff’s advocate.
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NM 3390-19 in SC. Suit no. 1866-15
2 Date : 18.09.2019
3. It is further contended by the defendant that due to pre
occupation of advocate on record, he entrusted the matter to his
junior colleague. However, the junior colleague all of sudden left
the office of Advocate on record. Therefore, nobody appeared on
26.04.2019 and impugned order came to be passed. It is
contended by the defendant that due to negligent act on the part
of junior colleague of advocate on record, the delay of 120 days
has been caused to file the Written Statement. The defendant is
having very good case on merit as well as on law. Hence, the
defendant prayed for condonation of delay in filing Written
Statement.
4. The plaintiff opposed the Notice of Motion by filing say. It is
contended by the plaintiff that the Notice of Motion is time barred.
It is contended by the plaintiff that the defendant was served with
the Notice of Motion alongwith the Affidavit by is advocate on
24.08.2015 and since then till filing of Notice of Motion, there is
four years delay which has not been explained by the defendant.
The defendant deliberately and intentionally failed to filed the
Written Statement just to delay the hearing and final disposal of
the suit. Therefore, the plaintiff prayed for rejection of the Notice
of Motion.
5. Heard both the sides. Perused Notice of Motion and replay.
The reason assigned by the defendant is that he has not been
served with the Writ of Summons but it is not in dispute that he
has been served with the earlier Notice of Motion alongwith the
letter of advocate of plaintiff dated 24.08.2015. In my view, that
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NM 3390-19 in SC. Suit no. 1866-15
3 Date : 18.09.2019
would be sufficient compliance for filing Written Statement. The
another reason assigned by the defendant is that the junior lawyer
who was looking after the matter has left the office of advocate. In
my view, due to the negligent act on the part of the advocate, the
litigation should not be suffered. If the delay is not condoned and
defendant is not permitted to defend the suit, in my view, his right
to contest the suit would be taken away. The inconvenience
caused to the plaintiff can be compensated by awarding reasonable
cost. Thus, I proceed to pass the following order :
ORDER
1. The Notice of Motion No. 3390 of 2019 is hereby made
absolute in terms of prayer clause “a to c”.
2. The delay of 120 days in filling additional Written
Statement is hereby condoned subject to condition of
payment of Rs.2000/ to the plaintiff by defendant.
3. Notice of Motion No. 3390 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 18.09.2019
Dictated on : 18.09.2019
Typed on : 18.09.2019
Draft Submitted on : 18.09.2019
Checked on : 19.09.2019
Signed on : 20.09.2019
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NM 3390-19 in SC. Suit no. 1866-15
4 Date : 18.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21/09/2019 at 1.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
18/09/2019
JUDGMENT/ORDER signed by P.O.
on
20/09/2019
JUDGMENT/ORDER uploaded on 21/09/2019
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