Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.4128 OF 2019
IN
SUIT NO.3317 OF 2008
Syndicate Bank, a body corporate
Constituted under the Banking Companies
(Acquisition and Transfer of Undertaking) Act,
1970 having its Head Office at Manipal in the
State of Karnataka and a Zonal office at Maker
Tower "E" Wing, 2nd floor, Cuffe Parade,
Mumbai 400 005 and a Branch Office amongst
other at Housing Finace Branch, Shankara
Mattam Building Telang Cross Road No.8,
Matunga 9E), Mumbai400 019. ....Plaintiff
V/s
1. Datta Balasaheb Kanburkar, an adult
Indian Inhabitants having his address at
1/11, Subhadra Niwas, Kaju Pada
Bhatwadi, Ghatkopar(W),Mumbai400 086.
2. Mr.Dinesh D.Patil, an adult, Indian
Inhabitants having his address at B/48,
Room No.4, Deonar Municipal Colony,
Govandi,Mumbai.
And
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Darshan Securities Pvt.Ltd. Shreeram
Mills Premises,3rd floor, G.K.Marg,
Worli Naka, Mumbai. .... Defendant
APPEARANCE:
Advocate Rajan V.Pillai for plaintiff.
Advocate Mangesh Nalawade for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 08th November, 2019
ORDER
1. Defendant no.2 prefer Notice of Motion to set aside "no
cross" order passed on 4/10/2019. It is submitted by the
defendant no.2 that on 4/10/2019 witness was present before the
Court however, counsel on record was busy in special Court and
he was unable to come before the Court he request made
adjournment however, adjournment was refused and "no cross"
order was passed. It is further submitted by defendant no.2 that
he has good case on merit and has every chance of succeeding in
the present suit. He prayed that in the interest of Justice equity
and good conscience Notice of Motion may be allowed.
2. The plaintiff contest the Notice of Motion by filing written
reply. It is contended by the plaintiff that the defendant no.2 have
not come before the Court with clean hand and suppressed
material facts. It is further contended that the defendant no.2 is a
guarantor of principle borrower and he had no right to cross
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examine of P.W.No.1. It has been pointed out by the plaintiff that
the defendant no.2 have no right to cross examination and prayed
to dismiss the Notice of Motion .
3. I have heard Ld.Counsel for both sides. The present suit is
pending since 2008 and on 4/10/2019 witness Arvind Desai is
present before the court. Admittedly, it is a statutory right of
defendant to cross examine witness Arvind Desai. However,
advocate for defendant is absent and accordingly order against
defendant no.2 was passed. As per the record advocate Mangesh
Nalawade for defendant no.2 present before the court but he
shows unability to conduct cross examination and therefore, order
was passed.
4. The plaintiff has not specifically challenge the contention of
Notice of Motion in respect of setting aside "no cross" order dated
4/10/2019. But only pointed out that defendant no.2 has no right
to conduct cross examination of P.W.No.1. When P.W.No.2
contest the suit as defendant then he has statutory right to cross
examine P.W.No.1. Therefore, I do not found any merit in the
submission putforth by the plaintiff before the Court. As pointed
out by plaintiff defendant no.2 is a guarantor after default
principle borrower then responsibility to repay amount which can
into the shoulder of defendant no.2 to discharge the burden on his
shoulder. I am of the opinion that he needs to cross examine
P.W.No.1 to extract truth. Therefore, in the interest of Justice, I
am of the opinion that fair opportunity be given to the defendant
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no.2 to cross examine P.W.No.1. However, the matter is
adjourned on account of defendant no.2 and therefore, he is liable
to pay cost amount. Hence, I pass following order.
ORDER
1. Notice of Motion No.4128 of 2019 is allowed.
2. "No cross" order dated 4/10/2019 is set aside, subject to cost
of Rs.1000/.
3. Cost amount be credited to Government.
4. After payment of cost amount defendant is permitted to
conduct cross examination of P.W.No.1 Arvind Desai
Date:08/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 08/11/2019
Typed on :08/11/2019
H.H.J.Signed on :08/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08.11.2019 at 5.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
08.11.2019
JUDGMENT/ORDER signed by P.O. on 08.11.2019
JUDGMENT/ORDER uploaded on 08.11.2019
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