Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.4011/2019 ..1.. In S.C.Suit No.2472/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 4011 OF 2019
IN
S.C. SUIT NO. 2472 OF 2018
CNR NO : MHCC01-011061-2019
Mr. Rajesh Saichand Sharma,
Aged : 45 Years,
Residing At : Room No. 907, 9th Floor,
Shree Siddhi Sagar SRA CHS Ltd.,
Belani Nagar, Worli, Mumbai - 400 025.
At present residing in USA at 204,
10th Street, Apt., 601, Jersy City,
NJ 07302, U.S.A. ...Plaintiff
Versus
Mr. Subhash Chandra Sechan Sharma,
Aged : 46 Years,
Residing At : Room No. 907, 9th Floor,
Shree Siddhi Sagar SRA CHS Ltd.,
Belani Nagar, Worli, Mumbai - 400 025. ...Defendant
Appearance :-
Mr. B. S. Yadav, Advocate for Plaintiff.
Mr. Nishikant Patil h/f Mr. Prashant Jadhav, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 3RD FEBRUARY, 2021.
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Notice of Motion No.4011/2019 ..2.. In S.C.Suit No.2472/2018
ORAL ORDER
By this notice of motion the defendant has sought
condonation of delay in filling written statement.
2. It is the defendant’s case that, he had received the
summons on 27.02.2019. The plaintiff is his real brother, who has also
filed Suit No. 1273/2016. The Suit was referred for mediation on
18.07.2017 but did not settle. Meanwhile the defendant was trying to
convince the plaintiff to settle the dispute through his mother. After
receiving summons in this suit, the Presiding Judge has adjourned
another suit for settlement on 28.02.2019. He was under
bonafide
belief that, the matter would be settled and so could not appear before
this Court on 11.01.2019. After getting knowledge of order dated
11.01.2019, he instructed his advocate and his advocate appeared in
the Court on 22.07.2019. The defendant was hoping for settlement and
so could not appear and file written statement within time. The
plaintiff visited India in August, 2019, and had a joint meeting with the
family, when the settlement was discussed but failed. The defendant
has not caused delay deliberately or intentionally. If the order is not set
aside, he will suffer great prejudice.
3. Notice of Motion is opposed by the plaintiff contending
that, the reasons for delay are false. The order dated 25.02.2011 is
intimated to the defendant which is acknowledged by him. The
defendant is perpetual defaulter. Another Suit No. 1273/2016 has
nothing to do with present suit. The defendant is in habit of defaulting
at every stage, even in another suit on flimsy grounds. Despite
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Notice of Motion No.4011/2019 ..3.. In S.C.Suit No.2472/2018
knowledge of the proceeding of present suit the defendant did not
appear in time. There is no sufficient cause to shown to recall the order.
4. Perused. Heard advocate for the defendant. Gone through
the written notes filed by the plaintiff.
5. It is defendant’s case that, he is served on 27.02.219.
However, the Writ of summons reveals that, the defendant is served on
03.11.2018. It is way back than the date pleaded by the defendant.
The defendant further contended that, he engaged an advocate and
instructed him to appear on 22.07.2019 and his advocate accordingly
appeared in the matter. The proceedings however indicate that, the
advocate for defendant appeared on 10.04.2019 and has filed
Vakalatnama at Exh.2.
6. Considering the documents on record, the story put
forward by the defendant is false.
7. As per the defendant’s affidavit the plaintiff visited India in
the month of August, 2019 and had a joint meeting in the family, when
the talks about settlement were discussed. This incident had taken
place after 7 months of passing the
exparte order. This itself indicates
that, prior to August, 2019, the defendant has no occasion to have talks
of settlement with the plaintiff. It is defendant’s contention that, under
bonafide that belief the matter would be settled, he could not appear
before this Court on 11.01.2019, the date on which the suit has
proceeded
exparte against the defendant. However, the circumstances
reveal that, the meeting of talks of settlement has taken place in August,
2019, as per the defendant’s own contention. The defendant had
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Notice of Motion No.4011/2019 ..4.. In S.C.Suit No.2472/2018
sufficient time even prior to 11.01.2019 to appear in the suit and to file
written statement as the summons was served upon him on 03.11.2018.
Even after 11.01.2019 the defendant had sufficient time till filing this
notice of motion. However, even during that time nothing is done by
the defendant. However, the defendant has come with a false assertion
that, the summons is served on him on 27.02.2019 and his advocate for
the first time appeared on 22.07.2019. Both his statements are falsified
by the record of the Court. Such a person cannot be believed and so the
grounds for condonation of delay do not inspire confidence. In these
circumstances, the notice of motion is found meritless. Hence,
following Order :-
ORDER
Notice of Motion No. 4011/2019 is dismissed with costs.
(AJIT N. MARE)
Judge,
Date : 03.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 03.02.2021
Transcribed on : 03.02.2021
HHJ Signed on : 04.02.2021
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Notice of Motion No.4011/2019 ..5.. In S.C.Suit No.2472/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.02.2021 4.53 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 03.02.2021
Order signed by P. O. on 04.02.2021
Order uploaded on 04.02.2021
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