Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.4090/19
MHCC010112272019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 4090 OF 2019
IN
SUIT No. 484 OF 2016
1. M/s. Akshay Vitta Management &
Investment Consultancy Services
Private Limited
2. Mr. Farokh Todywalla
3. Shirish Himatlal Shah ...Applicants
(Orig. Defendant Nos.1 to 3)
In the Matter of
Kaluchand Harakchand Bokadia …. Plaintiff.
VERSUS
1. M/s. Akshay Vitta Management &
Investment Consultancy Services
Private Limited & Ors. … Defendants.
Appearance
M/s. S.M.Jain & Associates, learned Advocate for the plaintiff.
Ms. Kavita Sharma, learned Advocate for defendant Nos.1 to 3
CORAM : HHJ SHRI. R.A.SASNE
(C.R.NO.62)
Date : 12th July, 2022
O R A L O R D E R
This notice of motion has been taken out by defendant
Nos.1 to 3 for setting aside no written statement order passed on
12.10.2018 and for permission to file their written statement on record.
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2. It is the contention of the present defendants that the suit
summons were served in the month of November, 2016. Since, the
relevant papers were not immediately available with defendants, the
defendants were unable to provide proper instructions to their
Advocate. The defendants were not satisfied with the advice of their
earlier Advocate and therefore, they were required to change the
Advocate. On 29.11.2016, the defendants' Advocate appeared before
the Court and undertake to file Vakalatnama. As defendant No.3 was
not available for signing Vakalatnama, time to time the defendants
availed time to file their written statement. The defendants were
incorrectly advised to participate the Testamentary proceeding. The
directors of defendant No.1 are senior citizen. They suffered from
various ailments. For personal reason, they were required to travel
outside Mumbai. Reasonable time was required to collect the
documents. With these contentions, these defendants have prayed to
set aside the order dated 18.10.2018, passed against them and to
permit them to file written statement.
3. The plaintiff by affidavitinreply resisted the notice of
motion. He denied the contents in the notice of motion. According to
plaintiff, the reason stated in the notice of motion is not satisfactory.
The delay is intentional. With these contentions, the plaintiff has
requested to dismiss the notice of motion.
4. Heard learned Advocate for defendant Nos.1 to 3 and the
learned Advocate for the plaintiff.
5. Admittedly, this suit is proceeded without written
statement of defendant Nos. 1 to 3. Record shows that on 12.10.2018
order directing the suit to proceed without written statement of
defendant Nos. 1 to 3 has been passed. This notice of motion is taken
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out by these defendants on 10.06.2019. It is the contention of the
present defendants that there was no proper advise given by their
previous Advocate therefore, they were required to change the
Advocate. It is their further contention that they were incorrectly
advised to participate and contest the testamentary proceeding in the
Hon'ble High Court. It is their further contention that time was
consumed to collect the necessary documents. The present suit is for
declaration in respect of deed of conveyance dated 31.12.2009 and
injunction against the defendants. Valuable rights of the parties are
involved in the suit. The procedure is handmaid of justice hence, to
avoid technicalities and also to decide the dispute on merit, I am of the
view to grant an opportunity to the defendants to appear in the suit and
to contest the same, I am of the further view that considering the delay
caused by defendant Nos. 1 to 3, the notice of motion shall be allowed
subject to costs. In the result, I pass following order:
O R D E R
1. Notice of Motion No.4090 of 2019 is allowed subject to costs of
Rs.2,500/ for each defendant.
2. No written statement order passed on 12.10.2018 against defendant
Nos.1 to 3 is set aside. They are allowed to file their written statement.
3. Costs shall be paid to the plaintiff on or before next date.
4. Notice of Motion No.4090 of 2019 is disposed of accordingly.
(R.A. SASNE)
Judge,
City Civil Court,
Date : 12/07/2022 Mumbai.
Dictated on : 12/07/2022
transcribed on : 13/07/2022
Signed on : 14/07/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
15.07.2022 at 12.10 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 12/07/2022
Order signed by P.O. on 14/07/2022
Order uploaded on 15/07/2022
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