Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010113282019
CNR NO. MHCC010113282019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4139 OF 2019
IN
SUIT NO.7438 OF 2001
Poise Holdings Ltd. & Ors. ]...Applicants
IN THE MATTER OF
Deepak Fertilisers and Petrochemicals
Corporation Ltd.
]...Plaintiffs.
V/s.
Mashreq Bank & Ors. ]... Defendants
Appearances :
Ld. Adv. Dheeraj Chavan for plaintiff.
Ld. Adv. Taniya D'souza for defendant no.1.
Ld. Adv. Shah for defendant no.2, 4(a), 4(b) and 5.
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CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 25th April, 2023
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
applicants No.2, 4(a), 4(b) and 5 for recalling the Order dated
31.07.2015 and permitting the applicants [defendant No.2, 4(a), 4(b)
and 5] to file the written statement after condoning the delay of 2049
days in filing the written statement.
2. It was submitted by the defendants/ applicants No.2 and 5
that the plaintiff has filed the present suit as an interpleader suit,
alleging that defendant No.1 on the one hand and other defendants on
other hand are claiming adversely to each other rights in certain shares
in the plaintiff's Company. The present suit being filed in the year 2001
before the Hon'ble Bombay High Court, the plaintiff had not applied for
issuance of writ of summons. In the year 2005, the plaintiff filed
Chamber Summons for condonation of delay in issuance of writ of
summons. However, the present applicants do not remember as to
whether they were served with the writ of summons or not. From the
year 2001 to 2010, the plaintiff filed Notice of Motion for various
interim reliefs. In the year 2012, the matter was transferred to this
Court. The said Notice of Motions were pending till the year 2014. In
the year 2014, the earlier advocate for applicant No.2 developed illness
and he expired. Thereafter, from the year 2014 onwards the applicant
No.2 himself developed severe illness as a result his wife and applicant
No.3 could not look after the affairs of the present suit. The defendant
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No.1 filed a Notice of Motion No.1641 of 2014 for condonation of delay
in filing written statement. The same has been allowed. Thereafter,
matter was adjourned and on 31.07.2015 the matter was proceeded
without written statement of defendant No.2 to 5. The plaintiff had
filed his affidavit of evidence and the matter was fixed for admission
and denial. Thus the trial has not yet commenced. There was delay in
filing the written statement. The applicants be allowed to file written
statement or elase they were suffere harm, loss and prejudice whereas
the plaintiff and defendant No.1 will not suffer any loss. The applicants
were represented and were appearing in the Court every time but due
to ill health of their Advocate and applicant No.2 himself, the written
statement could not be taken on record and therefore, delay be
condoned and the applicants be permitted to file their written
statement.
3. The plaintiff and defendant No.1 filed their reply to the
Notice of Motion. They denied the contention of the applicants in
Notice of Motion. However, both the plaintiff and defendant No.1
stated that the applicants were actively participating in proceedings
since 2001 and were aware of the said order. The plaintiff and
defendant No.1 had not denied the pendency of the various Notice of
Motions.
4. Heard the Learned Advocate for all the parties at length.
During the pendency of the Notice of Motion the applicant No.2 i.e.
defendant No.4 expired and his legal heirs were brought on record as
defendant No.4(a) and 4(b). The defendant No.4(a) and 4(b) filed
their written statement vide Exh.18 and therefore the present Notice of
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Motion is restricted only for defendant No.2 and 5. The applicants in
the Notice of Motion on affidavit stated that after the Chamber
Summons No.139 of 2005, the writ of summons were prepared but they
are not aware whether they were served or not. Admittedly the present
suit is a interpleader suit where the defendant No.1 is claiming
adversely to defendant No.2 in respect of the shares in the plaintiff
Company. It is also admitted that since 2001 to 2010 there were
various notice of Motion pending before the Hon'ble High Court and
before this Court. The applicants on oath stated about the illness of the
earlier advocate and of the defendant No.4. The applicants also stated
that due to ill health of defendant No.4, they could not file their written
statement. The plaintiff and defendant No.1 both has stated that the
applicants were actually participate in the proceeding. It therefore,
seems that in spite of appearing on record, they could not file their
written statement due to inadverteance and for the reasons mentioned
in the Notice of Motion. As such the matter is fixed for admission and
denial and till date the matter has not proceeded further due to
pendency of the Notice of Motion. Admittedly there is huge delay in
filing the written statement. However, considering the submissions, it
seems that in order to provide an opportunity to the applicants, it would
be appropriate to condone the delay. The delay if not condoned, it will
be the applicants who will suffer serious prejudice as that compared to
the plaintiff and defendant No.1. No harm will cause to the plaintiff
and defendant No.1, if the applicants are permitted to file their written
statement and therefore, the delay can be condoned in the interest of
justice and for adjudicating the matter on merits. Also for deciding the
real controversy between the defendant interse, it is necessary to
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condone the delay and to allow the defendant/ applicants to file their
written statement. I, therefore, proceed to pass the following order:
ORDER
1. The Notice of Motion No.4139 of 2019 is allowed subject to costs
of Rs.5,000/.
2. Out of which Rs.2500/ to be paid to the plaintiff and Rs.2500/
to be paid to the defendant no.1.
3. After depositing costs the defendant no.2 and 5 will be at liberty
to file their written statement.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 25042023 City Civil Court, Gr. MUMBAI
Dictated on : 25042023
Transcribed on : 25042023
checked on : 26042023
Signed on : 26042023
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.04.2023 at 03.20 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
25.04.2023
Judgment/order signed by P.O. on 26.04.2023
Judgment/order uploaded on 26.04.2023
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