Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ord. In Ch S 19642019, in Suit no.8345 of 1984
MHCC010111892019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.1964 OF 2019
IN
SUIT NO.8345 OF 1984
(HIGH COURT SUIT NO.3221 OF 1984)
Atul Dhirajlal Sohni & Anr. Plaintiffs.
V/s
Babubhai M. Choksey & Ors. Defendants.
And
The Court Receiver, High Court,Bombay Respondent.
And
Kailash P. Agarwal Applicant.
And
Shri. Rudrapalpratap @ Gopal
Kailashprasad Agarwal. Proposed Applicant.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 22nd DAY OF DECEMBER, 2022
: Appearances:
The learned Adv. Mr. D'Souza for the Applicant.
The learned Adv. Mr. J.J. Shah for the Plaintiffs.
The learned Adv. Mr. Jhangiani for Defendant No.2.
ORAL ORDER
The proposed applicant Rudrapalpratap @ Gopal
Kailashprasad Agarwal has taken out the present Chamber Summons
for seeking reliefs inter alia;
(a) To condone delay, if any in taking out Chamber
Summons;
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2 Ord. In Ch S 19642019, in Suit no.8345 of 1984
(b) The abatement of Notice of Motion No.3032/1999
against the deceased applicant be set aside;
(c) To allow amendment as per Schedule annexed thereto;
(d) Time to reregister and renumber reconstructed Notice of
Motion No.3032/1999 be extended in the interest of justice.
2. It is contention of the proposed applicant that his
deceased father, original applicant has taken out Notice of Motion
No.3032/1999 for claiming various reliefs. However, during
pendency of the suit and Notice of Motion No.3032/1999 his
deceased father died on 26.02.2017 leaving behind him and other
legal heirs. After the death of his deceased father his learned
advocate informed this fact along with name of the legal heirs and
representatives of deceased applicant to the learned advocate of the
plaintiff vide letter dated 03.04.2017. However no steps has taken by
the plaintiffs to bring the proposed applicant on record. Therefore
Notice of Motion No.3032/1999 came to be abated.
3. It is further contended that original Notice of Motion
No.3032/1999 is not traceable in the record and proceeding of the
suit. The applicant made inquiries with department of the High Court,
Bombay but the same could not be traced. It is contended that this
court has directed the applicant to reconstruct Notice of Motion but
for want of paper it could not be reconstructed and it requires some
time hence time be extended for the same. It is further contended
that the Hon'ble High Court vide order dated 07.06.2010 directed to
hear Notice of Motion No.3032/1999 along with suit. Hence Chamber
Summons may kindly be allowed.
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3 Ord. In Ch S 19642019, in Suit no.8345 of 1984
4. Plaintiff No.1 filed reply and strongly opposed Chamber
Summons. It is contended that Chamber Summons taken out by
proposed applicant is hopelessly barred by law of limitation. It is
submitted that applicant i.e. father of proposed applicant died on
23.02.2017 and therefore present Chamber Summons taken out by
proposed applicant i.e. after lapse of 2 and half years is barred by law
of limitation. The proposed applicant is guilty of gross negligence and
unexplained delay. Thus Chamber Summons taken out by proposed
applicant may kindly be rejected by imposing costs.
5. Defendant No.2 also strongly opposed Chamber
Summons by filing reply on affidavit. It is contended that Chamber
Summons taken out by proposed applicant is misconceived and
deserved to be dismissed in limine. The proposed applicant is guilty
of suppression of relevant and vital facts. Chamber Summons is
barred by limitation.
6. Heard learned advocate for proposed applicant. None
appeared for plaintiffs and defendant No.2 when called. Perused the
record.
7. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the proposed applicant is
entitled for the reliefs claimed in
Chamber Summons?
Yes
2. What order ? As per final order.
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4 Ord. In Ch S 19642019, in Suit no.8345 of 1984
REASONS
AS TO POINT NO.1:
8. It is main contention of the proposed applicant that, his
deceased father/applicant has taken out Notice of Motion
No.3032/1999 for claiming various reliefs. However during pendency
of the Notice of Motion and suit his father expired on 26.02.2017.
Inspite of informing this fact to learned advocate for plaintiffs, no
steps taken by plaintiffs to bring proposed LRs of deceased applicant
on record. Hence Notice of Motion came to be abated. It is further
contended that, the Hon'ble High Court vide order dated 07.06.2010
was pleased to direct to be heard Notice of Motion No.3032/1999
along with suit. In support of his contention, the proposed applicant
has filed death certificate of deceased original applicant wherein it
reveals that he died on 26.02.2017. Proposed applicant has also filed
copy of order dated 07.06.2010 passed by the Hon'ble Bombay High
Court in Notice of Motion No.1739/2008. Upon perusal of the same,
it reveals that the Hon'ble High Court was pleased to restore Notice of
Motion No.3032/1999 and directed to be heard the same along with
suit. Thus in the facts and circumstances of the case, proposed
applicant has made out the case for bringing himself on record by
condoning the delay caused in taking out Chamber Summons and
setting aside order of abatement. It further reveals that original
Notice of Motion No.3032/1999 is not traceable and thus it is
necessary to reconstruct the same by extending the time. Hence my
answer to Point No.1 in affirmative.
AS TO POINT NO.2:
9. In view of my above discussion, I pass following order.
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5 Ord. In Ch S 19642019, in Suit no.8345 of 1984
ORDER
1. Chamber Summons No.1964/2019 stands allowed and made
absolute in terms of prayer clause(a) to (d) subject to payment of
costs of Rs.2000/ paid to DLSA within 14 days.
2. Needless to say that payment of costs is condition precedent
failing which the order stands automatically vacated.
3. Upon payment of costs proposed applicant to carry out
amendment within 14 days from the date of the order.
4. Chamber Summons stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 22.12.2022 (C.R. No.1)
Dictated on : 22.12.2022
Transcribed on : 23.12.2022
checked and Signed on : 23.12.2022
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6 Ord. In Ch S 19642019, in Suit no.8345 of 1984
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 23.12.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 5.35 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 22.12.2022
JUDGMENT/ORDER signed by P.O. on 23.12.2022
JUDGEMENT/ORDER uploaded on 23.12.2022
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