Final Order 2

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No. 4077 of 2018 1
MHCC010112072019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.4077 of 2019.
IN
S. C. SUIT NO.4176 of 2013.
State Bank of India. ...Plaintiff/
Applicant.
In the matter of :-
State Bank of India. ..Plaintiff.
V/s.
1. Mr. Vijay Suresh Taware & Ors. ..Defendants.
Appearances :-
Adv. Salman Athania i/b Adv. Padmakar S. Garad for plaintiff.
Adv.Arvind Taral for defendant Nos.1 (a) to 1(c).
Coram : His Honour Judge
Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 01/09/2023.
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Order on Notice of Motion
No. 4077 of 2018 2
ORAL ORDER
This Notice of Motion is moved by the plaintiff to restore
the suit against defendant No.2, dismissed for want of prosecution vide
order dated 19.07.2018 and other reliefs.
2. During the course of arguments, the Ld. advocate for the
plaintiff argued that though this Notice of Motion was also moved to set
aside ‘no reply order’ to Notice of Motion No. 4166 of 2018. However
Notice of Motion No. 4166 of 2018 is dismissed. Hence, the plaintiff
does not want to press this Notice of Motion to grant relief vide clause
(b) and (d). Hence, this Notice of Motion is press into action by the
plaintiff to grant relief vide prayer clause (a) and (c)
3. It is contention of the Ld.advocate for the plaintiff that it
has instituted the suit for recovery of an amount of Rs.5,12,332/-
against the loan availed by the defendant No.1. Defendant no. 2 was its
guarantor. On 29.11.2016, 19/07/2018, 01/11/2018 and 29/1/2019
the plaintiff and its advocate could not remain present. Hence, on
29.01.2019 the impugned order is passed. The plaintiff has substantial
right to decide the matter against the defendant No.2 who is guarantor
of original defendant No.1. In such circumstances, if the impugned
order is not set aside then the plaintiff will suffer irreparable loss.
Hence, prayed to allow the Notice of Motion.
4. Defendant No.1(a) and 1(d) filed reply to the Notice of
Motion. It is their contention that the plaintiff failed to serve writ of
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Order on Notice of Motion
No. 4077 of 2018 3
summons to the defendant No.2. Hence, suit is dismissed against him.
The plaintiff was not diligent in conducting the suit. Hence, prayed to
dismiss the Notice of Motion.
5. It is submission of the Ld advocate for the plaintiff that
defendant No.2 is being guarantor of the loan availed by defendant
No.1 is equally liable to answer the claim.
6. On the other hand, it is submission of the Ld advocate for
the defendant Nos. 1(a) and (d) that the plaintiff failed to take proper
steps against the defendant No.2. Hence, relying upon the decision of
Hon’ble Bombay High Court in Sunil Manoharlal Dhiliwal V/s. IAG
Cargo Formerly known, Commercial Suit No. 28 of 2017.
7. In Sunil Manoharlal Dhiliwal (Supra), the Hon’ble Bombay
High Court dismissed the Notice of Motion on the ground that the
plaintiff failed to satisfy the Court why he did not serve defendant No.2.
In the present case, it is submission of the Ld advocate for the plaintiff
that it has changed its erstwhile advocate. Hence, there was
communication gap in between the plaintiff and its advocate. This
submission is not categorically denied by its advocate. It is fact that the
suit was instituted to recover of an amount of Rs.5,12,332/-. In such
case, if the plaintiff is denied to serve the defendant No.2, then it is
plaintiff who will suffer irreparable loss. Simultaneously, it is necessary
to note that the suit is pending since date of the impugned order due to
non action on the part of the plaintiff. In such circumstances, if the suit
is decreed and if it is directed the defendant to pay decretal amount
with interest, then they are defendants who will have face undue
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Order on Notice of Motion
No. 4077 of 2018 4
hardship. Considering the facts, it would be just and proper to allow the
Notice of Motion with cost and with certain directions as follows. The
impugned order was passed on 29.01.2019. The Notice of Motion is
moved on 05.11.2019. Suit is instituted in the year 2013. Therefore, the
cost of Rs. 5,000/- payable to defendant Nos. 1(c) and (d) will meet the
justice. It will be equitable to direct to both parties no interest will be
levied, as cost of proceeding, from 19.07.2018 till defendant Nos. 2 is
served with summons. In the result following order is passed :
ORDER
1. Notice of Motion No.4077 of 2019 is allowed subject
to cost of Rs. 5,000/- payable to the defendant Nos. 1(c)
and 1(d) in equal proportion within 15 days from the
date of this Order.
2. Notice of Motion is made absolute in terms of prayer
clause (a) and (c)
3. Both parties to take note that no interest will be
levied on principal amount of decree, if the suit is decreed
with interest from 19.07.2018 to the date on which
defendant will be served with suit summons
4. Notice of Motion No.4077 of 2019 is disposed of
accordingly.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:01.09.2023 Greater Bombay (CR 59)
Declared on : 01.09.2023
Dictated on : 01.09.2023
Transcribed on : 08.09.2023
Checked on : 11.09.2023
Signed on : 11.09.2023
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Order on Notice of Motion
No. 4077 of 2018 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.09.2023 at 5.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 01.09.2023
Order signed by P.O. on 11.09.2023
order uploaded on 11.09.2023
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