Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4164 OF 2019
(CNR NO.MHCC01-011415-2019)
IN
S.C. SUIT NO. 4692 OF 2008
Shridhar Iyer and Anr. ].. Plaintiff.
V/s.
HDFC Ltd. And Anr. ]..Defendant.
Advocate Ms. Pranjali Bhandari for the plaintiff.
Advocate Ms. Shweta Satardekar i/b Sanjay Udeshi & Co for the
defendant No.1.
Advocate Ms. Mansi Jaiswar for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 10th NOVEMBER 2021
ORDER
The Notice of Motion is taken out by the defendant No.2
for setting aside of no cross order against him and order of closing of
evidence of defendant No.2 and and for allowing the defendant No.2 to
conduct the cross-examination of the plaintiff witness.
2. It is the case of the defendant that the cross-examination of
plaintiff by defendant No.2 was closed by my learned Predecessor
initially. The defendant No.2 has come up with Notice of Motion
No.2711 of 2019 for setting aside order of no cross-examination passed
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against him. My learned Predecessor was pleased to allow the same
and directed defendant No.2 to pay cost of Rs.10,000/- to the plaintiffs
within two weeks from 30.08.2019 i.e. from the date of passing of
order.
3. It is the case of defendant No.2 that he mislead about that
order and he was under impression that the cost is to be paid on or
before 02.11.2019, which was next fixed date of the matter. On
02.11.2019, defendant No.2 was absent and again my learned
Predecessor was pleased to note that the order was not complied by
defendant No.2. Hence, cross-examination of defendant No.2 was
closed. On the very date his evidence was closed and the matter was
posted for final hearing.
4. This Notice of Motion is taken out by defendant No.2 for
allowing him to pay cost as directed in Notice of Motion No.2711 of
2019 and allow him to cross-examine the plaintiffs.
5. The Notice of Motion is objected by the plaintiff on the
ground that defendant No.2 is somehow trying to delay the proceeding.
He was negligent to conduct the cross-examination of the plaintiffs.
She has relied upon the roznama of the matter from 09.01.2019
onwards and pointed out that defendant No.2 was absent from time to
time and inspite of giving ample opportunity, he failed to cross-examine
the plaintiff.
6. I have heard both the learned advocates at length.
7. So far as order passed by my learned Predecessor in Notice
of Motion No.2711/2019 is concerned, it is not challenged by any of the
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parties. Therefore, merits of the matter upto filing of Notice of Motion
No.2711/2019 are already considered by my learned predecessor. We
have to see the conduct of defendant No.2 subsequent to the passing of
the order. It is important to note that defendant No.2 was directed to
pay the cost within two weeks from 30.08.2019, but matter was
adjourned to 02.11.2019.
8. The learned advocate for defendant No.2 submits that he
was ready with the cheque, but it cannot be tendered on 02.11.2019, as
he was held up at some other place. It was not possible for him to
appear before the Court. He further submits that the cheque was
immediately sent to the plaintiffs through post.
9. The learned advocate for the plaintiff has agreed that
cheque was received by the plaintiff on 13.11.2019, but she submits
that the was sent to the plaintiff on 11.11.2021 and not on 02.11.2021.
It is also important to note that this Notice of Motion is taken out by the
defendant No.2 on 07.11.2019 i.e. immediately after his non-
compliance was noted by the Court. He took the matter on board on
07.11.2019 for filing this Notice of Motion. This conduct of defendant
No.2 shows that he was willing to conduct the matter. Therefore, I have
come to the conclusion that it is necessary to give one more opportunity
to defendant No.2 subject to payment of costs to enable this court to
dispose of the suit on merits and it will be the full and total adjudication
of the matter. So far as delay by defendant No.2 is concerned, I feel it
proper to impose some more costs on defendant No.2. Accordingly, I
proceed to pass following order.
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O R D E R
1. Notice of Motion No.4164 of 2019 is allowed
subject to the payment of cost Rs.5,000/– in
addition to cost of Rs.10,000/- to be paid by
defendant No.2 to plaintiffs.
2. The cost shall be paid on or before 17.11.2021.
3. The plaintiffs are directed to keep the witness
present on 17.11.2021, so that defendant No.2 can
cross-examine him.
4. Notice of Motion No.4164 of 2008 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 10.11.2021 Gr.Mumbai.
Dictated on : 10.11.2021
Typed on : 15.11.2021
Signed on : 17.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18.11.2021 AT 3.10 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
10.11.2021
Judgment/Order signed by P.O. on 17.11.2021
Judgment/Order uploaded on 18.11.2021
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