Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3947 OF 2019
IN
SUIT NO. 2317 OF 2014
HRIM FINANCE AND SECURITES ]
PRIVATE LIMITED, A Private ]
Company incorporated under the ]
provisions of Companies Act 1956, ]
and having its Registered office at ]
325, Madhu Mention, 1st Floor, ]
Room No.106, Kalbadevi Road, ]
Mumbai 400 002. ]..Applicant/Defendant
IN THE MATTER OF
M/S. GOPIKIKSHAN DGA HUF ]
A Hindu Undivided Family through ]
its Karta Mr. Gopikishan Daga, and ]
having its address at A102, Anand ]
Bhavan, V.P. Road, C.P. Tank, ]
Mumbai – 400 004. ].. Plaintiff.
V/s.
HRIM FINANCE AND SECURITES ]
PRIVATE LIMITED, A Private ]
Company incorporated under the ]
provisions of Companies Act 1956, ]
and having its Registered office at ]
325, Madhu Mention, 1st Floor, ]
Room No.106, Kalbadevi Road, ]
Mumbai 400 002. ]..Defendant`.
Advocate Ms. Sheela Mistry for the plaintiff.
Advocate Ms. Kalyani Deshmukh for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 25th OCTOBER, 2021
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ORDER
The Notice of Motion is taken out for setting aside the no
written statement order passed against the defendant on 18.12.2018.
The suit is instituted for recovery of amount along with interest.
2. It is the case of defendant that the no written statement
order was passed against the defendant on 18/12/2018. Defendant
appeared in the suit on 21/04/2015. Defendant informed the Court on
08/06/2015 about the pending arbitration petition before the Hon'ble
High Court. Defendant took out a notice of motion on 14/09/2015 for
dismissal of the suit. It was finally heard and dismissed on 21/02/2018
and the matter was adjourned for filing written statement on
11/06/2018. The said order was challenged by the defendant before
the Hon'ble High Court. In the circumstances, defendant was unable to
file written statement on record. Therefore, the Court ordered that the
suit to proceed without written statement on 18/12/2018. Defendant
has stated that he will suffer irreparable loss, if he is not allowed to file
written statement on record. He has prayed for setting aside the no
written statement order passed against him and for allowing him to file
the written statement.
3. Plaintiff appeared and contested the Notice of Motion. It is
the case of plaintiff that defendant has caused abuse of process of law.
The notice of motion is not filed by authorized person. Defendant is
trying to drag the proceedings. It is further stated that the membership
of defendant in National Stock Exchange is suspended. Defendant has
not filed income tax returns since the year 2012 – 13. The defendant
has taken out this notice of motion only to delay the proceedings.
Plaintiff has prayed for dismissal of the motion.
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4. I have heard both learned advocates at length. I have gone
through the record and proceeding.
5. It is admitted that the defendant had filed a notice of
motion for dismissal of the suit which came to be dismissed by this
Court. Even after the dismissal of the notice of motion the suit was
listed for filing of written statement. The defendant could not file the
written statement within time. However, he had challenged the order
of dismissal of a notice of motion before the Hon'ble High Court. In the
circumstances, it is clear that the defendant is diligent in contesting the
suit but at the same time he is delaying the proceedings by not filing
written statement within time. The suit is of the year 2014. It is
necessary for the Court to adjudicate the matter fully and finally. Delay
is a technical reason and rights of the parties should not be allowed to
be defeated on the ground of technicalities. Whatever delay is caused
by the defendant can be compensated in the terms of costs. If
defendant is allowed to file written statement on record, it will enable
this court to dispose of the suit on merits and it will be the full and total
adjudication of the matter.
6. As the suit is old and the defendant has appeared in the
suit in the year 2015 itself, he ought to have filed written statement on
record. Therefore, I have come to the conclusion that the defendant is
liable to pay heavy costs. Accordingly, I proceed to pass following
order.
O R D E R
1. Notice of Motion No. 3947 of 2019 is allowed
subject to payment of cost of Rs.15,000/ by the
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defendant to plaintiff within 30 days from the date of
this order.
3. The defendant shall file his written statement
within 30 days from the date of this order failing which
the suit shall proceed without written statement.
4. The Notice of Motion No. 3947 of 2019 is disposed
off accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 25.10.2021 Gr.Mumbai.
Dictated on: 25.10.2021
Typed on : 27.10.2021
Signed on : 30.10.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30.10.2021 AT 3.00 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
25.10.2021
Judgment/Order signed by P.O. on 30.10.2021
Judgment/Order uploaded on 30.10.2021
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