Final Order 1

Order Details: Notice of Motion
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MHCC010109342019 Presented on : 24/10/2019
Registered on : 24/10/2019
Decided on : 22/01/2024
Duration : 04 Ys 02 Ms 29 Ds
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3956 OF 2019
IN
SUIT NO.2402 OF 2016
(CNR NO.MHCC01-010934-2019)
M/s. Kannamwar Nagar 2 Grahak
Sahakari Bhandar Maryadit Co-operative Society ).. Plaintiffs
V/s.
M/s. M.S. Enterprises & others ).. Defendants
Appearances :-
Ld. Adv. Nitin Parkhe for plaintiffs.
Ld. Adv. A. B. Seth h/f Adv. Yogesh Naidu for defendant No.1 to 3.
CORAM : HIS HONOUR JUDGE
V. V. PATIL
COURT ROOM NO.09
DATE : 22/01/2024.
ORDER
1. This notice of motion is taken out by the plaintiff for
restoration of the Suit No.2402/2016. It is the contention of the plaintiff
that plaintiff has filed the present suit No.2402/2016, wherein
defendants have taken out Notice of Motion No.1290/2017, which was
allowed. The appeal from impugned order dated 14/06/2017, was
appealed in the Hon’ble Bombay High Court on 19/08/2017. It is further
contended that when the suit came up for hearing on 20/08/2019, this
Court was pleased to dismiss the suit ex-parte in absence of advocate for
the plaintiff. The plaintiff was under impression that as the notice of
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motion is disposed off and appeal is filed before the Hon’ble Bombay
High Court against the order passed in the said notice of motion, the suit
will be stayed till the matter is decided by the Hon’ble Bombay High
Court. The plaintiff was not aware about the further hearing status of the
suit. Therefore, the absence of plaintiff on the date of hearing was
neither intentional nor willful. The plaintiff will suffer irreparable
consequences if matter is not restored and decided on merits. Hence,
plaintiff prayed for restoration of the Suit No.2402/2016.
2. Defendant No.1 to 3 filed an Affidavit in Reply to the notice of
motion and opposed the same. It is submitted that plaintiff seeks to secure
the order of restoration of the suit, which has been rejected as per law and
order was passed after due hearing and by the reasoned order dated
14/06/2017. The plaintiff has challenged the said order by an appeal from
Order (ST.) No.23948/2017 alongwith Civil Application No.843/2017,
seeking condonation of delay. The Hon’ble Bombay High Court on
22/03/2019, dismissed the said A.O.(St) No.23948/2017 alongwith Civil
Application No.843/2017, for want of prosecution. Thereafter, plaintiff
filed Civil Application bearing C.A. (St) No.11019/2019 for restoration of
the A.O.(St) No.23948/2017 alongwith Civil Application No.843/2017,
which is still pending on the file of Hon’ble Bombay High Court. In such
circumstances, there are no grounds for restoration of the suit. Hence,
prayed for dismissal of the Notice of Motion.
3. Perused the notice of motion, Affidavit in support of notice
of motion and Reply filed by the defendants. Heard both sides. The
following points arise for my determination and I have recorded my
findings to them for the reasons stated below :-
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Sr. No. POINTS FINDINGS
1. Whether the plaintiffs have made out the
case for restoration of the suit, as prayed ?
In the Negative.
2. What order? As per the final order
R E A S O N S
AS TO POINT NOS.1 & 2 :
4. It appears that the defendants had taken out the notice of
motion No.1290/2017 on the point of maintainability of the suit in view
of specific bar u/s.34 of The Arbitration & Conciliation Act, 1996. Upon
hearing both sides, Notice of Motion No.1290/2017 came to be allowed
on 14/06/2017, by observing that an Agreement between the plaintiff
& the defendants provided for referring the matter to sole arbitrator in
case of dispute. Consequently, on 14/06/2017, Notice of Motion was
allowed and Suit No.2402/2016 was stayed and parties were directed
to refer their dispute to the sole arbitrator as mentioned in Clause
No.34 of the Agreement dated 07/08/2013. Further, it appears that on
20/08/2019, the suit came to be disposed off by passing specific order,
which runs as under :
“As notice of Motion No.1290/2017 is allowed on 14/06/2017,
it is for the plaintiff to take further steps to appoint arbitrator as
per the procedure laid down in Arbitration & Conciliation Act.
In such circumstances, suit is to be disposed off, hence, suit is
hereby disposed off and consequently Notice of Motion
No.4834/2016 stands disposed off”.
5. Now though, plaintiff prayed for restoration of the suit by
submitting that he was under impression that the matter was stayed
and he was not aware about the further status of the suit and on
20/08/2019, the Court was pleased to dismiss the suit ex-parte in
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absence of advocate for plaintiff, it can be gathered that the suit is not
dismissed for want of prosecution but, is disposed off in view of order
dated 14/06/2017 that parties were directed to refer their dispute to
the sole arbitrator on 20/08/2019. My Ld. Predecessor held that it is
for the plaintiff to take further steps to appoint arbitrator as per the
procedure laid down in The Arbitration & Conciliation Act, 1996. In
such circumstances, suit is to be disposed off.
6. Thus, in view of order dated 14/06/2017, the suit came to
be disposed off. Now, so far as the order dated 14/06/2017 is
concerned, plaintiff has already challenged the said order before the
Hon’ble High Court and the said matter is pending before the Hon’ble
High Court. Therefore, in such circumstances, the suit cannot be
restored. The said matter is sub-judice before the Hon’ble High Court
and the same can be restored subject to order of Hon’ble High Court to
that effect. The present Notice of Motion is devoid of merits and is liable
to be dismissed. In the result, I proceed to pass the following order :-
ORDER
1. Notice Motion No.3956/2019 in Suit No.2402/2016, is hereby dismissed.
2. Notice of Motion is disposed off accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 22/01/2024 C.R. No.09, Gr. Mumbai
Dictated on : 22/01/2024
Transcribed on : 23/01/2024
Signed on :
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“Certified to be true and correct copy of the original signed order”.
25/01/2024
at about 04.15 p.m.
(Ms. Vidya Abhijit Mande)
Stenographer (Grade-I.)
Court Room No.28, Gr. Mumbai
Name of the Hon'ble Judge : V. V. PATIL,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 22/01/2024
Order signed by Hon'ble Judge on : 25/01/2024
Order uploaded on : 25/01/2024
at about 04.15 p.m.
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