Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No. 3846/2019 in Sum. Suit No.3934/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3846 OF 2019
CNR NO.: MHCC010107032019
IN
SUMMARY SUIT NO. 3934 OF 2009
Mr. Salim Sayed ]...Plaintiff
Versus
Mrs. Roshanara Ahmed Baig ]
Alias Mrs. Roshan Abuzar Dhakhni ]
and another ]...Defendants
Appearances:
Plaintiff inperson.
Advocate Mr. Ramesh Jain for defendant No.1.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 24th JANUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by defendant No.1 to set aside No
Cross Order.
2. Defendant No.1 has stated that she was held up in one matter
under Section 138 of the Negotiable Instruments Act on the date when
no cross order is passed. She has further stated that on that day her
Advocate was attending his other matter. She has further further stated
that when she reached the Court, by that time no cross order is already
passed. She has further stated that the absence of her Advocate as well
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:2: N.M. No. 3846/2019 in Sum. Suit No.3934/2009
as herself, when the suit was called out for crossexamination of the
plaintiff was on account of the reasons were reasonably beyond the
control. She has further stated that no instructions from her side due to
pre occupation of her business, has resulted in the absence of her
Advocate, at the time when the Suit was called out for cross
examination. She has further stated that absence was neither deliberate
nor due to negligence. Defendant No.1 has further stated that if no
cross order is not set aside, she will suffer irreparable loss and hardship.
3. Plaintiff has filed reply to this Notice of Motion and stated that
defendant No.1 has wilfully neglected to appear before the Court on
19.08.2019. He has further stated that there are many occasions on
which the defendant No.1 nor her Advocate present. Plaintiff has
further stated that defendant No.1 is wilfully prolonging the matter to
harass him. Plaintiff has further stated that as defendant and her
Advocate were not present for a long time hence no cross order was
passed by the Court. Plaintiff has further stated that defendant has no
evidence against plaintiff to prove her case. Defendant No.1 filed appeal
memo and Writ Petition and defendant No.1 given six weeks time to
deposit money in the City Civil Court. Defendant No.1 has stated that
Notice of Motion be dismissed.
4. It appears, the Notice of Motion is filed immediately on the next
date of the No Cross Order passed against defendant No.1. It appears
that defendant was given permission to file Written. Considering the
circumstances that plaintiff has adduced evidence and documents are
marked on 08.01.2019 and matter was fixed for cross examination fixed
on 19.06.2019. But on 19.06.2019 also Advocate for the defendant
No.1 present at later stage. Hence, considering the circumstances that
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:3: N.M. No. 3846/2019 in Sum. Suit No.3934/2009
defendant is given leave to defend, it will be proper to give opportunity
to defendant to fight case on merits by taking crossexamination of
plaintiff. But considering the circumstances that defendant failed to take
crossexamination of plaintiff on the fixed date and considering the
reasons stated for absence, it appears delay is not deliberate but matter
is delayed because of defendant. Hence, it will be proper to allow this
application subject to cost. Hence, following order:
ORDER
1. Notice of Motion No. 3846 of 2019 is allowed, subject to cost of
Rs.1000/ to given by defendants to plaintiff.
2. Notice of Motion No.3846 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 24.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 24.01.2020
Transcribed on : 24.01.2020
Signed on : 24.01.2020
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:4: N.M. No. 3846/2019 in Sum. Suit No.3934/2009
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.01.2020 At 05.07 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
24.01.2020
Judgment/Order signed by P.O. on 24.01.2020
Judgment/Order uploaded on 29.01.2020
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