Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4343-19 in S.C.Suit no.4233-2010
1 Date :14.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4343 OF 2019
IN
S.C. SUIT NO. 4233 OF 2010
(CNR MHCC01 0119382019 )
Manahar P. Khandawalla … Plaintiff
Versus
Nischint Finance and Leasing Company & Ors. ... Defendants
Appearances :
Representative of defendant no.1.
Adv.Kailas S.Surve a/w Adv.Amit Sheth for plaintiff.
Adv.Kailas S.Surve a/w Adv.Amit Sheth for plaintiff.
Adv.Mr.S.D.Mulye for defendant no.1.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 14.02.2020
ORDER
1. The defendants filed instant Notice of Motion for setting
aside ‘No WS Order dated 16.08.2017 which is passed against all
the defendants to the extent of first defendant and seeking
permission to file Written Statement on record.
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2. It is contended by the advocate of the defendant no. 1 that
the matter came to be transferred in the City Civil Court in the
year 20122013. The matter before Hon’ble High Court was not
reached upto the filing of the Written Statement. Except
defendant no. 1, none of the other 17 defendants appeared in the
Court to defend th suit. The defendant no. 1 was not represented
in the suit till January 2018 as the earlier lawyer of the defendant
no. 1 company were not appearing in the City Civil Court.
Therefore, in the month of August 2017 the matter was proceeded
exparte.
3. It is contended by the defendant that there were several
upheavals in the family of the Director of the Company in 2017
when one of the director of the company Mrs. Ramila A. Sanghvi
who is the mother of defendant no. 3 suffered life scare in England
during her visit in the beginning of May 2017 when she had a
cardiac arrest and in the month of July 2017 had undergone
surgery. Therefore, defendant no. 3 had been to England in the
month of October 2017 to bring her mother to India. ‘
4. It is submitted by the Advocate of the defendant that
Director Mrs. Ramila A. Sanghvi is still not fully recovered and she
required to take post operation care. Therefore, during that
period, they were not aware about the court proceeding and
ultimately on October 2017 the Court proceeded against the
defendant.
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5. It is contended by the defendant that as their regular lawyer
was not appearing in the City Civil Court in the month of January
2018, they have appointed the present lawyer who filed his
Vakalatnama on 15.01.2018. However the plaint and proceeding
served on the defendants were not easily located with the earlier
lawyer and considerable time has been lost in getting served copy
of the plaint for preparation of Written Statement. Unfortunately
the relevant person of the Company were no longer with the
Organisation to brief the new lawyer for preparation of Written
Statement. Therefore, ‘No WS Order’ came to be passed on
16.08.2017, even before new advocate is enthrusted with the
matter.
6. It is submitted by the defendant that after he has filed
Vakalatnama, the matter was came up for the crossexamination of
the plaintiff and though, the defendant has right to crossexamine
the plaintiff on his document and examinationinchief, Written
Statement was absolutely required to adjudicate the case fully and
effectively, whereby these defendants can also file his evidence
and the matter can be decided on merit.
7. It is submitted that the defendant has with great difficulty
managed to have Company Associate who was aware of the fact
but now staying abroad to deposed the fact of the case. Therefore,
delay has been occurred in tendering the present Notice of Motion.
Therefore, the defendants prayed for considering the aforesaid
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reasons, ‘No W.S. Order dated 16.08.2017 to be set aside.
8. The plaintiff opposed the Notice of Motion by filing his say.
It is contended by the plaintiff that defendant no. 1 was served
with Writ of Summons on 26.12.2011 through the Office of
Sheriff. As per rule, the defendant has to file Written Statement
within 30 days. But they choose not to file Written Statement and
therefore, the Court rightly proceeded without Written Statement.
Thus, Plaintiff prayed for rejection of Notice of Motion.
9. Heard both the sides. Perused Notice of Motion, reply as
well as Roznama. It appears from the Roznama that the present
suit came to be transferred in the year 2012. On 21.01.2014 one
Advocate Mr. Kalil had appeared for defendant no. 1 and 3. On
21.02.2014 one Advocate Mr. Siddheshwar for defendant no. 1
appeared. Likewise, on 05.05.2014 one Advocate Mr.
Siddheshwar had appeared for defendant no. 1 and 3 and on
10.07.2014 one Advocate Mr. Kale had appeared for defendant no.
1 to 4 before this Court. Hence, on perusal of the aforesaid
Roznama, it appears to me that statement made on affidavit that
till filing of Vakalatnama by the present Advocate in the year
2018, none appeared to represent the defendant no. 1 and 3 is
false.
10. The Roznama further says that on 16.08.2017, my
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Predecessor has specifically passed an order to proceed without
Written Statement of the defendant as they were served but failed
to file their Written Statement.
11. On 15.01.2018 Advocate Mule had filed Vakalatnama
for defendant no. 1 and matter was listed on 10.04.2018,
06.06.2018, 03.07.2018, 11.09.2018, 13.11.2018, 07.03.2019
inspite of knowing facts that matter was already proceeded
without Written Statement of the defendant, he did not take any
steps. On 13.06.2019 when the matter was fixed for cross
examination of the plaintiff, on that day nobody had appeared and
therefore, no cross order was passed and the matter was adjourned
to 18.06.2019.
12. Even, Advocate Mule had appeared on 18.06.2019,
29.0.2019, 21.09.2019, 07.11.2019 till that time he has not file
Registered Notice of Motion though leave was granted on
29.07.2019. The aforesaid conduct of the defendant shows
negligency on their part and they have acted upon when my
Predecessor fixed the matter for exparte hearing. The advocate
for defendant during course of argument although contended that
he has filed instant Notice of Motion only for defendant no. 1 but
record shows that he is seeking relief against all other defendants.
The reasons assigned by the defendant that one of the director of
the company had met with an Cardiac surgery in the year 2017 but
in my view, there is reasons assigned by the defendant since the
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date of service of summons why they have not filed Written
Statement on record. In my view, there is absolutely no reasons
assigned by the defendant to set aside the order dated 16.08.2017.
Hence, I do not find any substance in the Notice of Motion and
same needs to be dismissed with cost. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 4343 of 2019 is hereby dismissed with
cost.
2. Notice of Motion No. 4343 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 14.02.2020 Greater Bombay.
Dictated on : 14.02.2020
Typed on : 14.02.2020
Draft Submitted on : 14.02.2020
Checked on : 17.02.2020
Signed on : 17.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
17/02/2020 at 2.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
14/02/2020
JUDGMENT/ORDER signed by P.O.
on
17/02/2020
JUDGMENT/ORDER uploaded on 17/02/2020
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