Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3430/2019 L.C. Suit No.409/2017
CNR No. MHCC01-011671-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3430 OF 2019
IN
L.C. SUIT NO. 409 OF 2017
Storewell Warehousing Company )
Through its Sole Proprietor )
Mr. Rakesh Navin Parekh )
Office address at 542, Sandhurst )
Bridge, Gandhi Building, )
Chowpatty, Mumbai – 400 007. ).. Plaintiff
Vs.
1. Municipal Corporation of Greater )
Mumbai )
The Designated Officer office address )
at Shaikh Hafizuddin Marg, Ashadham )
Colony, Madanpura Mumbai – 400 008. )
2. The Assistant Commissioner )
(E-Ward) Bycull Sankil Street )
Mumbai – 400 008. )
3. The Administrative Office )
(Estate Department) )
4. Mrs. Philomena Dolar Sheth )
Shop No.8 and 9 Dr. A. Nair Rod, )
Near Nair Hospital Opposite Marzban )
Colony, Mumbai – 11 )
...Defendants
APPEARANCE:-
Ld. Adv. Mr. N.P. Wagale for the plaintiff.
Ld. Adv. Mr. Kumawat for the defendant Nos.1 to 3/MCGM.
Ld. Adv. Mr. Kanishk Kayank for the defendant No.4.
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NM 3430/2019 ..2 .. L.C. Suit No. 409/2017
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R.NO.06)
DATED : 01st FEBRUARY, 2020.
O R D E R
Read notice of motion, reply filed overleaf. Heard both the
Ld. Advocates.
2. This Notice of Motion No.3430/2019 is taken out by
defendant No.4 praying to set aside the order dated 07.06.2019 &
permit her to file written statement and reply to notice of motion
No.785/2017.
3. The reasons given in the notice of motion are that she
was granted time to file written statement till 07.06.2019 as is
reflecting from the roznama dated 04.03.2019 and 29.04.2019.
Further on 29.04.2019 there was Loksabha Election and therefore
though her written statement was ready, she could not file the
same. The defendant No.4 had also mild attack and therefore, her
written statement could not be filed within time.
4. On perusal of proceeding it appears that, Defendants
have received the writ of present suit summons on 10.09.2018.
The grounds made out in Notice of Motion are that time was
given to her to file her written statement till 04.03.2019 as is
shown in roznama, loksabha elections were held on 29.04.2019,
and illness of defendant no.4 which resulted in delay.
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NM 3430/2019 ..3 .. L.C. Suit No. 409/2017
5. Though the averments in notice of motion are not
substantiated by documents with respect to mild attack, same
cannot be ground to outrightly dismiss her notice of motion. There
is delay of 7 to 8 months in filing written statement by the
defendant. The averments in notice of motion are affirmed on
oath. There is nothing on record to disbelieve them. Therefore,
averments in notice of motion needs to be believed on factum of
reasons of delay to file beyond 30 days.
6. Procedural laws are merely tools to do substantial
justice. It cannot be lost sight of the fact that if defendant is
denied opportunity to file her written statement then there would
be no meaningful contest in the present suit. In the absence of her
written statement she would be handicapped in contesting this suit
in effective manner. In order to decide the suit on merits,
opportunity can be given to defendant No.4. Provision of Order
VIII, Rule 1 of CPC, 1908 being directory in nature, I am inclined
to grant present notice of motion on costs. In result, I proceed
with following order.
ORDER
1. The Notice of Motion No.3430/2019 is hereby allowed
subject to costs of Rs.2,500/-(Rs. Two Thousand Five Hundred
Only) to be paid by defendant No.4 to plaintiff on or before next
date.
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NM 3430/2019 ..4 .. L.C. Suit No. 409/2017
2. Upon depositing the costs as per clause (1) of this order, the
order dated 07.06.2019 passed against defendant No.4 shall
stand set aside so also the delay caused in filing written
statement shall stand condoned and the written statement
tendered on record by defendant No.4 shall be taken on
record.
3. The Notice of Motion No.3430/2019 is accordingly disposed
of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :01.02.2020. City Civil Court, Gr. Bombay
Dictated on : 01.02.2020.
Transcribed on : 03.02.2020.
Signed on : 18.02.2020.
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NM 3430/2019 ..5 .. L.C. Suit No. 409/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.02.2020, 02.58 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
01.02.2020
JUDGMENT/ORDER signed by
P.O. on
18.02.2020
JUDGMENT/ORDER uploaded on 18.02.2020
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