Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL Court AT BOMBAY
NOTICE OF MOTION NO.3882 OF 2019
IN
SUMMARY SUIT NO. 3783 OF 2013
M/S. ACMEVIEW INTERIORS ]
SOLUTION PRIVATE LIMITED, ]
A Company incorporated under the ]
provisions of Companies Act, 1956 ]
Having address at Gala No.26, ]
Ground Floor, Tantiya Jogani Estate, ]
Sitaram Mill Compound, Mahalaxmi, ]
Mumbai 400 011. ].. Plaintiff.
V/s.
1. SOUNDARYA DECORATORS ]
PRIVATE LIMITED, ]
A Company incorporated under the ]
provisions of Companies Act, 1956 ]
Plot No.26, Survey Nos.2 and 3, ]
Porur Village, Kolathpur Post, ]
Keezhkottaiyur, Off: Vandaloor, ]
Kelambakkam Main Road, ]
Chennai – 600 048. ]
2. MR. BALAJI FULL NAME NOT ]
KNOWN M. D. OF SOUNDARYA ]
DECORATORS PRIVATE LIMITED, ]
Plot No.26, Survey Nos.2 and 3, ]
Porur Village, Kolathpur Post, ]
Keezhkottaiyur, Off: Vandaloor, ]
Kelambakkam Main Road, ]
Chennai – 600 048. ]
2. VENKAT RAMAN FULL NAME ]
NOT KNOWN SOUNDARYA ]
DECORATORS PRIVATE LIMITED, ]
Plot No.26, Survey Nos.2 and 3, ]
-- 1 of 8 --
2
Porur Village, Kolathpur Post, ]
Keezhkottaiyur, Off: Vandaloor, ]
Kelambakkam Main Road, ]
Chennai – 600 048. ]
4. D. SURESH, VICE PRESIDENT OF]
DEFENDANT No.1, SOUNDARYA ]
DECORATORS PRIVATE LIMITED, ]
Plot No.26, Survey Nos.2 and 3, ]
Porur Village, Kolathpur Post, ]
Keezhkottaiyur, Off: Vandaloor, ]
Kelambakkam Main Road, ]
Chennai – 600 048. ]..Defendants.
Advocate Mr. Suraj S. Kudalkar for the plaintiff.
Advocate Mr. Gole for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 28th AUGUST, 2021
ORDER
The Notice of Motion is taken out by the plaintiff for
restoration of the suit dismissed in default by my learned Predecessor.
2. It is the case of plaintiff that the suit is instituted for the
recovery of balance amount of Rs. 13,96,936/–. The defendant Nos. 1,
2 and 4 have filed their written statement. Issues were framed by this
Court and the matter was adjourned for the evidence of the plaintiff on
20/06/2019.
3. It is the case of the plaintiff that he was not knowing the
fact that he has to file affidavit of examination in chief. The next date
was fixed on 01/07/2019. The plaintiff attempted to meet his advocate
-- 2 of 8 --
3
on 29/06/2019, but the learned advocate was not available, as he had
gone to the Hon'ble Supreme Court. However, the matter was again
adjourned to 02/08/2019. The plaintiff has further stated that on that
day, his advocate was supposed to file withdrawal pursis. Hence, the
plaintiff personally did not attend the Court. However, on 02/08/2019,
the Hon'ble Court was pleased to dismiss the suit for want of
prosecution. After knowing the fact of dismissal, the plaintiff
immediately rushed towards the Court and tendered an application for
restoration of the suit. Accordingly, the suit was restored to its original
stage and time was granted to the plaintiff and to file the affidavit of
examination in chief. The next date was given as 19/09/2019. On that
day, the plaintiff sought adjournment as he could not engage any
advocate. He had prepared his affidavit of examination in chief but it
was to be finalized. However, the Court dismissed the suit again on
19/09/2019. The plaintiff has stated that there was no deliberate or
willful default on the part of the plaintiff.
4. The plaintiff has further stated that he engaged another
advocate in the 2nd week of October 2019 to take further steps in the
matter to set aside the dismissal order and restore the suit. The plaintiff
has further stated that there was no willful or intentional delay in
taking out this Notice of Motion. The plaintiff has prayed for setting
aside the order of dismissal passed by this Court on 19/09/2019.
5. I have heard both learned advocates at length. I have gone
through the record and proceeding and especially the Roznama in the
matter. It appears that on 02/08/2019, the suit came to be dismissed
for want of prosecution. Subsequently, on the very day the plaintiff
appeared before the Court and tendered an application for setting aside
-- 3 of 8 --
4
the exparte order. The application came to be allowed and the suit
was restored to its original stage. However, on the next date itself the
plaintiff did not appear before the Court. None was present on his
behalf. Hence, the suit again came to be dismissed. The Notice of
Motion is taken out on 16/10/2019.
6. It appears from the conduct of the plaintiff that though he
wants to proceed with the suit, he is much negligent. The suit was
instituted in the year 2013 and it is prolonged due to sheer negligence
of the plaintiff. At the time of first dismissal, he appeared before the
Court on the very day. At the time of second dismissal, he filed an
application within a month after the order of dismissal was passed. This
shows the wish of the plaintiff to proceed with the matter. However, the
conduct of the plaintiff makes him entitled to pay heavy costs to the
defendant as the matter is being prolonged only at the instance of
plaintiff.
7. The Learned advocate for plaintiff has relied upon
judgment in the case of Rafiq and another versus Munshilal and
another reported in AIR 1981 Supreme Court 1400. It is held that;
“A party who, as per the present adversary legal
system, has selected his advocate, briefed him and
paid his fee can remain supremely confident that
his lawyer will look after his interest and as such a
innocent party who has done everything in his
power and expected of him, should not suffer for
the inaction, deliberate omission or misdemeanour
of his counsel”.
-- 4 of 8 --
5
8. In the present matter, the plaintiff has alleged that he was
under impression that his advocate would represent him before the
Hon'ble Court. However, the plaintiff has not mentioned the name of
the advocate to whom he had appointed. He has merely stated that his
advocate might have been probably busy before the Hon'ble High Court.
Such a vague contentions are not sufficient to relieve the plaintiff from
remaining present before the Court on the date fixed. Therefore, with
all respect to above ratio, I state that it is not applicable to the present
matter as the facts are different.
9. In the circumstances above, I have come to the conclusion
that it is necessary to give the plaintiff an opportunity to prove its case
by leading evidence. Whatever delay is caused can be compensated by
awarding costs to the defendant. Accordingly, I proceed to pass
following order.
O R D E R
1. Notice of Motion No. 3882 of 2019 is allowed
subject to the payment of cost of Rs.5,000/ by the
plaintiffs to the defendants jointly.
2. On payment of costs by the plaintiff to the defendants
jointly, Suit No.3783 of 2013 shall be restored at its
original stage that is evidence of the plaintiff.
3. Notice of Motion No.352 of 2020 stands disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 28.08.2021 Gr.Mumbai.
Dictated on: 28.08.2021
Typed on : 28.08.2021
Signed on : 28.08.2021.
-- 5 of 8 --
6
-- 6 of 8 --
7
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30.08.2021 AT 2.20 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
28/08/2021
Judgment/Order signed by P.O. on 28/08/2021
Judgment/Order uploaded on 30/08/2021
-- 7 of 8 --
8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.08.2021 AT 5.40 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
26/08/2021
Judgment/Order signed by P.O. on 26/08/2021
Judgment/Order uploaded on 27/08/2021
-- 8 of 8 --