Final Order 1

Order Details: Chamber summons
Pdf Text: 1 N/M 4591/2019
in Suit no. 2682/15
MHCC010125922019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.4591/2019
CNR NO.MHCC010125922019
IN
SUIT NO.2682/2015
Dalpat Singh Kalyan Singh Chouhan ...Plaintiff.
Versus
1. Lohia Corp. Limited & Ors. ...Defendant.
Adv. Aneesa Cheema for the defendant no.1
None for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.14)
DATE : 12th DAY OF MARCH, 2021
ORAL ORDER
This notice of motion is taken out by the defendant no.1
for setting aside the order dated 16th January,. 2019 and further to
filed the written statement on record. This notice of motion is
supported by an affidavit being executed by authorised signatory of
the defendant no.1 Vijay Prakash Pandey. I have perused the notice
of motion as well as the contents of affidavit. The plaintiff has
strongly opposed the notice of motion by filing reply.
2. It is pertinent to note that the reply of the plaintiff is not
on affidavit. Inspite of that the defendant no.1 has filed the rejoinder
on affidavit which is taken on record. The main matter is old one. I
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have carefully gone through the order passed by my learned
predecessor which is the date 16th January, 2019. It would be
apposite at this stage to reproduced the said order which reads as
under, “ Adv.for deft present. Deft no.1 failed to filed the written
statement. Proceeded without written statement. Plff.to take steps
against deft no.2 and 3. Matter adjd to 22.2.2019 for steps. L.O.
Adv.Mithila Damle for deft no.1 present.” Upon going through the
aforesaid order one fact is clearly mentioned that on that day
advocate for defendant was present. The order further reflects that
plaintiff has yet to take steps against defendant no.2 and 3. The
subsequent roznama does not reflects what the steps were taken
against defendant no.2 and 3. Meanwhile the defendant no.1 has
taken out this notice of motion for filing written statement. The
learned advocate for the defendant no.1 Aneesa Cheema has made
statement at bar that the written statement of defendant no.1 is ready
in all respects and can very well be filed on record today itself.
3. On perusal of the pleading, the suit is for recovery of an
amount wherein the plaintiff has claimed for recovery of an amount
of Rs.23,54,536/(Rupees Twenty three lakh fifty four thousand five
hundred thirty six only) along with the interest and there is further
prayer regarding joint and several liability. Considering the nature of
the suit and as yet defendant no.2 to 3 have not appeared , in my
considered opinion for granting fair opportunity to defendant no1 to
contest the suit on merits, the written statement can be permitted to
be taken on record. So far as the delay is concerned, it is submitted
that the defendant no.1 is public limited company and the reasons as
mentioned in para no.3 clause (a) to (m) are the sufficient grounds
for considering the delay. It is trite law that for any mistake of the
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advocate the litigant should not be made to suffer. Even otherwise
the delay appears to be unintentional and bonafide one. I have
taken up this notice of motion for hearing and passing order to avoid
the delay and considering the reply of plaintiff which is not infact on
affidavit . The notice of motion is opposed mainly on ground that
each and every day delay has not been explained. Be that, as it may,
so far as the delay is concerned, by imposing certain conditions and
as the written statement is ready in all respect, by imposing certain
costs it would be suffice the purpose. As this is a money suit and to
give a fair opportunity to the defendant to contest the suit on merit,
in my opinion the notice of motion with certain conditions can be
allowed. In the result, I pass the following order.
ORDER
1. Notice of Motion No. 4591/19 is allowed and made
absolute in terms of prayer clause (a) and (b) subject to two
conditions.
i) The written statement should be filed on record by the
defendant no.1 today only.
ii) The defendant no.1 shall pay the costs of Rs.2,000/(Rupees
Two thousand ) to the District Legal Services Authority, Mumbai
within a period of two weeks from today.
2. Notice of Motion no. 4591/19 is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.12.03.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on :12.03.2021
Transcribed on :12.03.2021
Signed on : 12.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:12.03.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: pm
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.14)
Date of Pronouncement of JUDGEMENT/ORDER 12.03.2021
JUDGMENT/ORDER signed by P.O. on 12.03.2021
JUDGEMENT/ORDER uploaded on 12.03.2021
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