Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 1
MHCC010094392019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.103459 of 2019.
AND
CHAMBER SUMMONS NO.101660 of 2019.
IN
SUMMARY CIVIL SUIT NO.104222 of 2011.
Shree LTC Agro Sales Ltd., a Company ...Plaintiff
Versus
Mr. Nagarmal Banwarilal, Sole Proprietor ...Defendant
And
Mr. Banwarilal Goyal
Son and legal heir and representative of the
Deceased defendant.
Appearances :-
Adv.Vijay Sharma for plaintiff present.
Adv.Muzammil Shaikh h/f Adv.Mateen Shaikh for defendant present.
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Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 2
Coram : U. C. Deshmukh.
C.R. No : 59
Date : 29/02/2024.
ORDER
This Notice of Motion is moved by the plaintiff to restore
the suit dismissed on 09/10/2014 and Chamber Summons is taken out
to permit the plaintiff to bring legal representative of defendant on
record.
2. It is contention of the plaintiff that the suit was pending for
several dates to take the steps however he could not take the steps due
to illness and inadvertence. His advocate was also not present before
the court. Consequently the suit was dismissed on 09/10/2014.
3. It is specific contention of the plaintiff that he is 75years
old citizen of the India. The papers of the suit were misplaced hence he
could not take the proper steps. He moved Notice of Motion no.4167 of
2016, however said notice of motion was dismissed on 14/03/2017 as
the defendant was already expired and no legal heir was taken on
record. Thereafter the plaintiff applied for copies and filed this notice
of motion. If the notice of motion is not allowed plaintiff will suffer
heavy and irreparable loss. Hence prayed the allow the notice of
motion.
4. In reply the proposed defendant for whose addition in the
suit chamber summons is taken submits that the notice of motion is not
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Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 3
maintainable. He specifically submits that the original defendant was
expired prior to 8 to 9 years of the suit. This fact was brought to the
notice of the plaintiff by this respondent by filing written statement in
the suit. He further submit that he had filed death certificate of his
father i.e. original defendant to show that the defendant was expired on
24/01/2002. Hence prayed to reject the notice of motion and chamber
summons.
5. Ld.Adv. for the plaintiff argued that the court shall take
lenient view while condoning the delay. The court has to see that
justice shall be done. He placed reliance upon decision of Hon’ble
Supreme Court in Brahampal @ Sammay and Ors. V/s National
Insurance Company (2020) 9 SCR 504, in Rahim Shah V/s Govind
Singh (2023) 10 SCR 913 and decision of Hon’ble High Court in Sanjay
Jadhav V/s The Joint Director, Higher Education, Aurangabad 2016 (1)
All MR 256.
6. In Rahim Shah (Supra) the Hon’ble Supreme Court has
observed that when there is no inordinate delay it shall be condoned.
In Brahampal (Supra) the Hon’ble Supreme Court observed that if it is
satisfied that there is sufficient cause then delay of 45days can be
condoned by giving liberal interpetition. Similarly the Hon’ble High
Court in Sanjay (Supra) has observed that when there is sufficient cause
then delay shall be condoned.
7. Keeping in mind aforesaid observation it has to see whether
the notice of motion can be allowed and whether there is sufficient
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Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 4
cause for the same. The fact that the defendant was expired prior to the
suit on 24/01/2002 is not in dispute. It is also significant to note that
the plaintiff does not deny that the present respondent has filed written
statement in year 2012 and whereby he brought on record that the sole
defendant was expired prior to the suit. It means suit was instituted
against the dead person. Now it has to see whether it would be
justifiable in the interest of the justice to permit the plaintiff to amend
the plaint and bring the name of present respondent in place of original
defendant.
8. Apart from inordinate delay it is very interesting to note
that the plaintiff has come with the specific case that the deceased
defendant in month of May-2008 approached him in Mumbai and
informed that if he receive small deposit from the plaintiff he could buy
and sale mustard seed for and on behalf of the plaintiff. Therefore on
request of the defendant the plaintiff paid an amount of Rs.8,00,000/-
vide cheque No.972813 on 08/05/2008. However the defendant sold
said goods for lower price and thereby caused loss to the plaintiff. Thus
the defendant was liable to pay suit amount against an amount of
Rs.8,00,000/-. When it is fact that the sole defendant died on
24/01/2002 his presence in month of May-2008 and transaction with
the plaintiff is quite unbelievable. In such case if the suit is restored the
plaintiff will fail to prove his case.
9. The plaintiff has stated that he was ill but no proof to that
effect is produced on record. There is no proper explanation on behalf
of the plaintiff whether the suit will survive against proposed defendant
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Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 5
and why he did not move the application to take name of present
respondent on record as soon as written statement informing the death
of original defendant is filed. At the cost of the repetition it is worthy to
note that the suit against dead person was not maintainable and there
was no substance in case of the plaintiff. Thus Notice of Motion and
Chamber Summons deserve to be rejected. In the result following order
is passed :
ORDER
1. Notice of Motion No.3459 of 2019 and Chamber Summons
No.1660 of 2019 are rejected.
3. Accordingly Notice of Motion No.3459 of 2019 and Chamber
Summons No.1660 of 2019 are disposed off.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:29.02.2024 Greater Bombay (CR 59).
Declared on : 29.02.2024
Dictated on : 29.02.2024
Direct type on : 29.02.2024
Checked on : 29.02.2024
Signed on : 29.02.2024
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Order on Notice of Motion
No.3459 of 2019 and
Chamber Summons
No.1660 of 2019 6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.02.2024 at 5.55p.m. Mr. S.D.Mahure
UPLOAD DATE AND TIME NAME OF CLERK-TYPIST
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 29.02.2024
Order signed by P.O. on 29.02.2024
Order uploaded on 29.02.2024
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