Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.3479 OF 2019
IN
S.C. SUIT NO. 2882 OF 2018
Nanda Uttam Kshirsagar aged about 52
years, Indian Inhabitant of Mumbai, Hindu,
residing at Shiv Shankar Co-operative Housing
Society, Gavad Sadan, Bhattipada, Bhandup
(W), Mumbai-400 078. ..Plaintiff
Versus
1. Laxmi Developers, a partnership firm
having its office at Laxmi Niwas
Building, 1st floor, Bhattipada road,
Bhandup(W), Mumbai-400 078, through
its partner Ashok Singh and Nilesh
Vikram Gavad
2. Vikram Shankar Gavad, age not known
3. Nilesh Vikram Gavad, age not known
4. Pravin Shankar Gavad, age not known
5. Ganesh Pravin Gavad, age not known
6. Vijay Pratap Gavad, age not known
Defendant Nos.2 to 6 are residing at
Shiv Shankar Co-operative Housing
Society, Gavad Sadan, Bhattipada, Bhandup
(W), Mumbai-400 078.
7. Sujit Karan Gavad, age not known
8. Ranjit Karan Gavad, age not known
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9. Sachin Karan Gavad, age not known
Defendant nos.7 to 9 are residing at
Laxmi Niwas building, first floor,
Bhattipada Road, Bhandup(W), Mumbai
400 078.
10. Shiv Shankar Cooperative Housing
Society Limited, a society registered
under the co-operative societies Act and
having its office at Shiv Shankar Co-operative Housing
Society Limited, Gavad Sadan, Bhattipada, Bhandup
(W), Mumbai-400 078.
11. Sarang Constructions, a developer firm
having its registered office at A/6,
Vishram Tower, Sector 9, Shri, Nagar,
Waghale Estate, Thane(W). ..Defendants
Ld. advocate Sameer Sawant for the plaintiff
Ld. advocate Anand Pai alongwith advocate Deepak Sharma i/b
DMS Legal for defendant nos.1 to 9
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 08/01/2021
ORAL ORDER
1. This notice of motion is tendered by defendant nos.1
to 9 for setting aside the order dated 25/06/2019 and to allow
the defendants to file their written statement.
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2. It is the contention of the defendants that defendant
nos.1 to 4 were served one day before the hearing date
03/11/2018. They appointed advocate Mr.Priyank Shukla for
defendant no.4 and adv. Mr.Nilesh Pandey for defendant nos.1
and 3. The suit was kept for direction and service upon other
defendants. On 25/06/2019, when the suit was called, defendant
nos.5 to 9 filed vakalatnama through their advocate M/s. DMS
Legal. Defendant nos.4 to 9 were never served upon although the
adv. was appointed for defendant nos.1 to 9 and accordingly he
has filed vakalatnama however no writ of summons was served
upon defendant nos.5 to 9. Defendant nos.1 to 4 could not file
the written statement as defendant no.2 was medically unfit and
was hospitalized at Fortis hospital for kidney ailment. The
defendant nos.3 and 4 were taking his care and therefore could
not file written statement within stipulated time. Therefore, they
seek condonation of delay for the same and sought permission to
file written statement.
3. The plaintiff denied the contentions and submitted
that defendant nos.1 to 9 did not accept the service on
03/11/2019. Defendant nos.1 to 4 were represented by their
advocate. The defendants have not given any explanation for
delay and therefore the notice of motion be rejected.
4. After considering the rival contentions, it appears
that the defendants failed to file the written statement as
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defendant no.2 was suffering from kidney ailment. The document
to that effect is also annexed. There is no material on record to
demonstrate that defendant nos. 5 to 9 were served with writ of
summons. In such type of notice of motion, there should not be
hyper technical and pendantic approach. The defendants wish to
contest the matter on merits. The matter is at the initial stage.
No prejudice would be caused to the plaintiff if the defence of the
defendants is taken on record. It is in the interst of justice of
parties if the matter is decided on merits after giving opportunity
to these defendants to tender their defence. Hence, it is
expedient to pass following order:-
ORDER
1. N/M No.3479/2019 is made absolute in terms of
prayer clause (a) to (c) subject to costs of
Rs.2500/- to be paid to the plaintiff within a
period of four weeks from today.
2. On payment of costs, the written statement of the
defendant nos.1 to 9 be formally taken on record.
3. Notice of motion is disposed off accordingly.
08/01/2021 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 08/01/2021
Typed on : 08/01/2021
Signed on : 12/01/2021
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
12/01/2021 at 4.00 pm.
Mrs.T.C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
08/01/2021
Judgment and order signed by P.O. 12/01/2021
Judgment/order uploaded on 12/01/2021
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