Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3570 OF 2019
IN
S.C. SUIT NO.8535 OF 1999
(HIGH COURT SUIT NO.2288 OF 1999)
M.G. Nrasimhan ]
S/o Shri M.G. Rajagopalan ]
AND
Smt. T.V. Devi ] … Plaintiffs
V/s.
1. Mr. T.V. Krishnan Nair & Ors. ] ... Defendants
Appearances :
Samant, Ld. Adv. for plaintiffs.
S.R. Tejpal, Ld. Adv. for defendant No.1a, 1b and 1c.
Nair, Ld. Adv. for denfendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 29th November, 2019
ORAL ORDER
1. This Notice of Motion is taken out by Rama Rjagopalan
(w/o. M.G. Rajagopalan the mother of the defendant No.2) as a
Constituted Attorney of the applicant/defendant No.2 for condonation
of delay in filing written statement by setting aside order dated
MHCC01-009721-2019
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25.4.2014 proceeding without written statement against the defendant
No.2 and to permit defendant No.2 to file written statement on record.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion and reply of plaintiff.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing without written
statement of defendant No.2 by setting
aside order dated 25.4.2014 can be
condoned?
In the affirmative.
2. Whether defendant No.2 can be
permitted to file written statement on
record ?
In the affirmative.
3. What Order ? As per final order.
REASONS
As to point Nos.1 to 3.
4. Heard both Learned advocates.
5. In brief it is contention of the defendant No.2 that suit plot
and the plot purchased by him are two different plots but since the
plaintiff clandestinely seeks to extend the alleged understanding in
respect of another plot to the plot purchased by him. Therefore, it is
necessary for him to defend the suit. He is employed in the USA. His
father, late M.G. Rajagopalan was attending the matter on his behalf as
his Constituted Attorney.
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6. Plaintiff had taken out a Chamber Summons in the year
2007 in Bombay High Court Suit No.2288 of 1999. He is aware of the
suit. In the year 2007 itself after taking out the said chamber summons
his father was attending the matter as his Constituted Attorney. His
father informed him that Advocate was appointed to attend the said
Chamber Summons. Therefore, he was under impression that his father
as a Constituted Attorney and Advocate appointed by his father were
taking care of the matter. Therefore, he forgot about the matter. He
was not knowing what happened in the matter. His father died on
14.10.2018.
7. It is further contention of the applicant/ defendant No.2
that Notice of Motion No.1842 of 2019 in the said Suit served upon him
in the Month of June, 2019, therefore he became aware of the matter.
He immediately tried to contact Advocate who represented him in the
said Chamber Summons before the Hon'ble High Court. He secured
email id of the erstwhile advocate on 11.07.2019. He sent an email to
the said advocate and inquired the matter. His erstwhile advocate Mr.
Madhusoodanan Nair, in the said Chamber Summons responded him
that said Chamber Summons is disposed of therefore, he is no more his
advocate.
8. It is further contention of the applicant/ defendant No.2
that he was in India in October 2018 to attend the last rites of his
father. He appointed his mother as his new C.A. He had requested said
advocate Madhusoodan Nair to assist him in the said matter.
Accordingly Vakalatnama is filed on 19.7.2019 which is signed by his
mother as his Constituted Attorney. His mother filed said Vakalatnama
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in the Court on 23.7.2019.
9. It is further contention of the applicant/ defendant No.2
that except the Notice of Motion No.1842 of 2019 no document was
served to him therefore, his Advocate by email dated 25.7.2019
requested to the advocate of plaintiff to supply copies of the
proceedings. The Advocate of defendant No.1 supplied incomplete
copies of proceedings on 6.8.2019. Thereafter, he sought directions
from this Court to the plaintiff to forthwith serve complete true copies
of the amended plaint and affidavit of documents, compilation of the
documents and other documents.
10. It is further contention of the applicant/ defendant No.2
that his present advocate informed him that he was not represented in
the suit since the time he was added as a party defendant. Therefore,
Notice of Motion be allowed. If, the Notice of Motion is not allowed, it
would lead to miscarriage of justice.
11. In brief it is contention of plaintiff that, filing of this Notice
of Motion is attempt to prolong the matter. Act of Constituted Attorney
is binding on the applicant/ defendant No.2. Defendant No.2 cannot
take benefit of his own wrong. There are no sufficient reasons to allow
the Notice of Motion. All the other contentions are denied.
12. Heard both sides. The said Chamber Summons No.1362 of
2007 filed in the said Bombay High Court Suit No.2288 of 1999. The
Hon'ble Bombay High Court is pleased to make absolute the said
Chamber Summons in terms of prayer clause (a). As per Order dated
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26.6.2008 it was directed to carry out the amendment within one week
from 26.6.2008 and to serve copies of amended plaint on the advocates
for the defendant and respondent within four weeks therefrom.
13. Perused Roznama dated 25.4.2014. Suit is proceeded
without written statement against the defendant No.2 as per Roznama
dated 25.04.2014.
14. Perused issues framed dated 9.6.2015. Issue No.2 is
“Whether plaintiff prove that the original defendant disposed off the
plot and defendant No.2 constructed house thereon and the transaction
dated 28.2.2000 in between original defendant and defendant No.2 is
null and void, as claimed?”
15. It is contention of the defendant No.2 that suit plot and
plot purchased by him are two different plots. According to defendant
No.2 his father was attending the matter as his Constituted Attorney
and therefore, he was under impression that his father was taking care
of the matter. Father of the defendant No.2 is died on 14.10.2018. The
said Chamber Summons are made absolute as per order dated
26.6.2008. Defendant No.2 has not filed written statement on
25.4.2014 hence suit proceeded without written statement against the
defendant No.2. According to the defendant No.2 his Advocate who
was appointed by his father as his Constituted Attorney had represented
him in the said Chamber Summons. It means defendant No.2 is aware
of the matter when his father appeared in the said Chamber Summons
as his Constituted Attorney. It was duty of the defendant No.2 to take
care of the matter. According to him, he was under impression that his
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father was taking care of the matter as he is Constituted Attorney.
Therefore, by this way or that way there is negligence on the part of the
defendant No.2 to keep track of the matter. There is long delay in filing
the written statement of defendant No.2. Considering the facts and
circumstances, I am of the opinion that if this Notice of Motion is not
allowed then defendant No.2 will not get an opportunity to defend him.
Therefore, by imposing some costs defendant No.2 can be permitted to
file written statement on record. Hence, I record my findings on point
Nos.1 and 2 in the affirmative and point No.3 the Notice of Motion is
allowed as per final order. Hence following order:
ORDER
Notice of Motion is made absolute as under:
1. Order dated 25.4.2014 proceeding without written statement
against defendant No.2 is set aside subject to cost of Rs.10,000/
(Rupees Ten Thousand).
2. Delay in filing written statement of defendant No.2 is hereby
condoned after compliance of the said costs.
3. Time granted till next date to deposit the cost amount in the
Court or it be given to the plaintiff.
4. Defendant No.2 is permitted to file written statement till next
date.
5. If defendant No.2 files written statement on next date then it be
read and recorded.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 29/11/2019 City Civil Court, Gr. MUMBAI
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Dictated on : 29/11/2019.
Transcribed on : 30/11/2019.
The H.H.J. is on
training at MJA from
01.12.2019 to 14.12.2019.
Checked on : 18/12/2019
Signed on : 18/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.12.19 at 12.25 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 29.11.19
Judgment/order signed by P.O. on 18.12.19
Judgment/order uploaded on 20.12.19
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