Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 4473-19 in S.C.SUIT no.3623-10
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 4473 OF 2019
(CNR no. MHCC01-012246-2019)
IN
SHORT CAUSE SUIT NO. 3623 OF 2010
(CNR no. MHCC01-005329-2009)
HIGH COURT SUIT NO.1164 OF 2010
Maharashtra Agro Industries
Development Corporation Limited,
(A Government of Maharashtra Undertaking),
registered under the Companies Act,
1956 having its regd. office at Rajan House,
3rd Floor, Prabhadevi, Mumbai-400 025.
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Plaintiff
Versus
Shri Dattatraya Sadekar
Occupation : Business,
carrying on business as Proprietor in the name &
style of Akanksha Agencies at S/6,
Chamundi Apartments, Saudades Road Pajifond,
Margao, Goa 403601.
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Defendant
Appearances:-
Ld. Advocate Mr. V. P. Vaze for the Plaintiff.
Ld. Advocate Mr. Jamshed Ansari for Defendant.
CORAM: HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED: 12th March, 2020.
O R A L O R D E R
1. By instant Notice of Motion, the defendant has prayed to
condone the delay of 2762 days in filing the Counterclaim and to
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2 NM no. 4473-19 in S.C.SUIT no.3623-10
take the same on record. In affidavit in support of the Notice of
Motion, it is stated that the defendant has filed written statement on
26.08.2011 reserving the right to file Counterclaim and set-off
against the plaintiff, issues are framed on 13.04.2016, the plaintiff
filed affidavit in Examination-in-chief on 09.08.2017 and compilation
of documents on 14.09.2017. According to the Ld. Advocate for the
defendant recording of evidence has not yet commenced and
therefore, the right of the defendant to file Counterclaim is not
extinguished.
Ld. Advocate for the plaintiff has filed affidavit in reply
contending that hearing of the suit has commenced is as much as
the matter is at the stage of cross-examination of plaintiff’s witness,
therefore, the counterclaim cannot be filed and Notice of Motion is
liable to be dismissed with costs.
2. After going through the record of this case, the Written
Statement is filed before 9 years on 26.08.2011. After about 9 years
from filing written statement, the defendant intends to file
Counterclaim claiming right to file Counterclaim in view of
Judgment of Hon’ble Apex Court in the case of Vijay Prakash Jarath
Vs. Tej Prakash Jarath [(2016) 11 SCC 800]. In paragraph no.10 of
the said Judgment, it is observed as under:-
“10. It is quite apparent from the factual position
noticed hereinabove, that after the issues were
framed on 18.10.1993, the counterclaim was filed
by the appellants before this Court (i.e. by
Defendant No.3 and 4 before the trial Court)
almost two-and-a-half years after the framing of
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3 NM no. 4473-19 in S.C.SUIT no.3623-10
the issues. Having given our thoughtful
consideration to the provision relating to the filing
of counterclaim, we are satisfied, that there was
no justification whatsoever for the High Court to
have declined, the appellant before this Court,
from filing his Counterclaim on 17-06-1996,
specially because, it is not a matter of dispute that
the cause of action, on the basis of which the
counterclaim was filed by Defendant no.3 and 4,
accured before their written statement was filed on
11-11-1992. In the present case, the respondent-
plaintiff’s evidence was still being recorded by the
trial Court, when the counterclaim was filed. It is
also not been shown to us, that any prejudice
would be caused to the respondent-plaintiff before
the trial Court if the counterclaim was to be
adjudicated upon, along with the main suit...
3. In the above matter, Counterclaim was filed after
framing of issues but before recording of evidence of the plaintiff. In
the instant matter, the plaintiff has filed affidavit in Examination-in-
chief on 09.08.2017 and matter is now fixed for his cross-
examination. Therefore, the above case law is not applicable to the
facts of this case. The defendant has not filed counterclaim before
the commencement of recording of evidence. In paragraph no.12 of
the written statement dated 26/08/2011 the defendant has mentioned
that he has reserved right to file counterclaim in respect of his claim
of Rs. 12,45,000/- + Rs. 1,17,000/- with interest. Limitation for
claiming such relief by way of the counterclaim is over on
26/08/2014 i.e. after three years from 26/08/2011. Belated
counterclaim must be discarded by the court. Therefore, Notice of
Motion fails and following order:
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4 NM no. 4473-19 in S.C.SUIT no.3623-10
ORDER
1. Notice of Motion No. 4473 of 2019 is dismissed.
2. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 12.03.2020. City Civil Court, Gr. Mumbai.
Dictated on : 12.03.2020
Transcribed on : 12.03.2020
Signed by HHJ on : 12.03.2020
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5 NM no. 4473-19 in S.C.SUIT no.3623-10
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.03.2020 at 5.00 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
12/03/2020
JUDGMENT/ORDER signed by
P.O. on
12/03/2020
JUDGMENT/ORDER uploaded
on
12/03/2020
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