Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion
No. 3837 of 2019
MHCC010104542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3837 OF 2019.
IN
SHORT CAUSE SUIT NO.506 OF 2014
ITC Limited ...Applicants
(Defendant)
In the matter between
Nirvaran Herbal Pvt. Ltd. …Plaintiff.
V/s.
ITC Limited ...Defendants.
Appearance:
None for plaintiff.
Adv. Hilla Boatwala a/w Ashwini Sonawane for Defendant
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B.PAWAR (C.R.No.59)
DATE : 22nd JULY, 2022.
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Order in Notice of Motion
No. 3837 of 2019
ORDER
Defendant has taken out this Notice of Motion with a
prayer to condone delay of 252 days in filing written statement and to
take on record the written statement filed by the defendant.
2. Heard Ld. advocate for defendant. Perused Notice of
Motion, supporting affidavit and record of the suit. Despite of giving
sufficient opportunities, plaintiff failed to file reply to Notice of Motion.
Advocate for the plaintiff also failed to argue on the Notice of Motion.
3. Ld. Advocate for the defendant submits that erstwhile
defendants are merged into the present defendant in 2014. The
documents and record prior to 2004 were not traceable. Defendant had
challenged maintainability of the suit on the ground of limitation as the
suit was filed after delay of over six years. Defendant had filed chamber
summons challenging the maintainability of the suit and it is dismissed
on 26.11.2018. Defendant has challenged the said order before the
Hon'ble Bombay High Court and the writ petition is still pending.
4. It is further submitted that notice has been issued by the
officer of Registrar of Companies, Chennai for striking of and
dissolution of the plaintiff company. Thereafter, plaintiff company is
dissolved and no one is appearing on behalf of the plaintiff in the suit
for last 4 to 5 years. The said fact is intentionally not brought to the
notice of the Court by the plaintiff. The delay in filing the written
statement is not deliberate. The defendant will suffer harm and
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No. 3837 of 2019
irreparable loss if written statement is not taken on record. On the
other hand, no harm and prejudice will be caused to the plaintiff if
Notice of Motion is allowed. Thus, it is prayed that the Notice of
Motion be allowed.
5. Record of the suit shows that the suit is lodged in this Court
on 09.01.2014. Advocate for defendant appeared on 05.05.2014.
Thereafter on 02.07.2014 defendant tendered draft chamber summons
and till 2018 the matter was pending for hearing on chamber summons.
Ultimately on 26.08.2018 the chamber summons is dismissed.
Thereafter the matter was fixed for exparte evidence.
6. Record further shows that by filing Chamber Summons No.
1566 of 2014, defendant had requested for extension of time for filing
of written statement till hearing and disposal of notice of motion taken
out by the defendant under Order 7 rule 11 of CPC. However, the said
chamber summons is disposed of as withdrawn on 23.11.2016.
7. It seems that since the day of appearance, defendant raised
the objection that suit is time barred and accordingly prosecuted
proceedings in the Court. It is also submitted that Writ Petition is
pending before the Hon'ble Bombay High Court against the order
passed by this Court in Chamber Summons No. 1567 of 2014.
8. The record further shows that since 26.08.2019 none
appeared for the plaintiff in the matter. The plaintiff has not raised any
objection to the prayer made in the Notice of Motion or has not
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No. 3837 of 2019
controverted the facts in the supporting affidavit filed by the defendant
by filing affidavit in reply. The delay on the part of defendant does not
appear to be deliberate or intentional. Opportunity deserves to be given
to the defendant to defend the suit on merit. However, considering the
period of delay, some costs need to be imposed on the defendant. The
Notice of Motion can be allowed subject to costs. Therefore, following
order is passed:
ORDER
1. Notice of Motion 3837 of 2019 is allowed subject to cost of
Rs. 1000/ (Rs. One Thousand Only) to be deposited with DLSA.
2. Defendant's written statement is taken on record.
3. Defendant shall comply the order of costs within two weeks
from the date of this order.
4. Notice of Motion No. 3837 of 2019 is disposed of accordingly.
(S.B. Pawar)
Judge,
Dated: 22/07/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 22.07.2022
Direct Typed on : 22.07.2022
Checked & Signed on :
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No. 3837 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27.07.2022 at 3.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 27.07.2022
Order signed by P.O. on 27.07.2022
order uploaded on 27.07.2022
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