Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3838/19 in Sum. Suit 933/18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3838 OF 2019
IN
SUMMARY SUIT NO. 933 of 2018
CNR NO.: MHCC010104552019
The Indian Hotels Company Ltd. …Plaintiff
Versus
Mr. Ashish Chordia … Defendant
Appearances:
Advocate Mulla & Mulla & Craigie Blunt & Caroe for the Plaintiff.
Advocate RavalShah & Co. for Defendant.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATED : 4th NOVEMBER, 2019
ORDER
This Notice of motion is to set aside and recall the order dtd.
29.08.2019 wherein Notice of Motion No. 784/19 has been dismissed
and to restore the said Notice of Motion No. 784/19.
2. Heard Learned counsel for defendant and Learned counsel for
plaintiff.
3. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to recall the order dtd. 29.08.2019
Yes
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2 NM 3838/19 in Sum. Suit 933/18
and to restore Notice of Motion
No. 784/19 ?
2. What order? As per final order
REASONS
AS TO POINT NOS.1 AND 2.
4. The Learned counsel for defendant has submitted that the
plaintiff has filed this present Summary Suit to recover an amount of
Rs.37,04,262/ with future interest. On 14.02.2019 defendant filed
Notice of Motion No. 784/19 seeking to recall the order dtd.
10.12.2018 that the matter to be proceeded Exparte. There were
settlement talks out of Court between the parties. On 29.08.2019 this
Court dismissed the Notice of Motion No. 784/19 on the ground that
the directions of this Court to file registered Notice of Motion was not
complied. In fact, the registered Notice of Motion No. 784/19 was
already tendered on record. The order is erroneous and therefore it
required to be set aside as defendant want to seriously contest this suit.
Therefore, this application.
5. The Learned counsel for plaintiff has replied to this application
and had stated that the defendant and his counsel deliberately
remained absent on the date fixed for hearing. This Court has given a
last chance to the defendant for hearing of Notice of Motion No.
784/19. When the Court found that the defendant is not proceeding
with that Notice of Motion it dismissed the Motion. If the defendant
wants to challenge that order it has to be before appropriate forum.
This Court without any satisfactory reasons cannot recalled that order.
Hence, application be rejected.
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3 NM 3838/19 in Sum. Suit 933/18
6. From the record it can be seen that this is suit for recovery of Rs.
37,04,262/ with future interest. Defendant was served with Summons
for appearance but he remained absent. Therefore, on 10.12.2018
order was passed to proceed the suit Exparte. Thereafter by precipe
the defendant on 14.02.2019 tendered draft Notice of Motion No.
784/19 to set aside the order of Exparte. That Notice of Motion was
served on plaintiff and plaintiff has field reply to that Notice of Motion.
Thereafter on 04.07.2019 this Court directed the defendant to file
registered Notice of Motion no. 784/19 on the assumption that the
registered Notice of Motion is not filed by the defendant. In fact, the
registered Notice of Motion was filed by defendant on 08.03.2019.
However, on 04.07.2019 defendant and his advocate was absent.
Thereafter on 29.08.2019 again the defendant and his advocate was
absent. The Court perused the earlier roznama that directions were
given to defendant to file registered Notice of Motion. The Court came
to conclusion that direction was not complied and therefore the Notice
of Motion No. 784/19 was dismissed on technical ground. The Ld.
Advocate for plaintiff has submitted that this Court cannot recall its
order, such submission has no substance as the Court can recall its
order if it is pointed to it that it has been error apparent on face of
record. In this case the order dtd. 29.08.2019 of dismissal of Notice of
Motion No. 784/19 is an order which is erroneous as already the
registered Notice of Motion was on record. The party who has done no
wrong should not be made to suffer, therefore, in the interest of justice
the order dtd. 29.08.2019 needs to be recall and Notice of Motion No.
784/19 is required to be restored. Therefore, point no. 1 is answered as
'Yes' and following order is passed :
ORDER
1. Notice of Motion No.3838 of 2019 is allowed.
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4 NM 3838/19 in Sum. Suit 933/18
2. The order dtd. 29.08.2019 of dismissal of Notice of Motion
784/19 is set aside and recalled.
3. Notice of Motion No. 784/2019 is restored and is kept for
hearing.
4. Notice of Motion No. 3838/2019 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 04/11/2019 City Civil Court,Gr. Bombay
Dictated on : 04/11/2019
Transcribed on : 04/11/2019
Signed on : 04/11/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05.11.2019 at 3.00 p.m. Mrs. Aparna V. Lele
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
04/11/2019
Judgment/Order signed by P.O. on 04/11/2019
Judgment/Order uploaded on 05/11/2019
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