Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4690/19(Suit 4145/10)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4690/2019
(CNR No. MHCC010128332019)
IN
S.C. SUIT NO.4145/2010
M/s. Ekta Supreme Corporation ..Applicant/
Ori. Deft. no.2
In the matter between ;
Mr. Jaikishan P. Vaswani @ Jackie ...Plaintiff
V/s.
1. Mr. Ashok Ambwani.
2. M/s. Ekta Supreme Corporation.
3. Corner View Coop. Hsg. Society Ltd. .. Defendants.
Appearances :
Adv. Abdullah Katlariwala for plaintiff.
Adv. Mr. Bhavin Gada @ Ms. Janhavi Doshi i/b Maniar Srivastava
Associates for defendant no.2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 27.10.2021.
ORDER
1. The defendant no.2 has filed instant notice of motion for
condonation of 934 days delay in filing additional WS and permitting
them to tender additional WS.
2. It is contended by the defendant that, the plaintiff filed
instant suit for declaration and specific performance of agreement for
sale of suit flat and also seeking further relief of injunction. The suit of
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the plaintiff is resisted by them by filing their WS on record.
3. It is contended that, the plaintiff amended their plaint by
filing Chamber Summons 1964/2016,which was allowed by this court
vide order dated 2.2.2017, as the defendant gave consent for the same.
The amended plaint was served upon the defendant on 13.2.2017.
4. It is further contended that, the aforesaid amendment was
carried out. The plaintiff took out Notice of Motion No.2052/2017
(second Motion) in or around May, 2017 seeking interim reliefs. The
defendant in or around November 2017 filed its reply to the aforesaid
Motion. In the meantime, the defendant filed Notice of Motion No.
2474/2016 prayed for rejection of the plaint under Order VII Rule
11(d) of CPC. At the same time, the defendant also preferred Notice of
Motion No. 2473/2016 for setting aside 'no WS' order dated 7.9.2013.
The aforesaid Notice of Motion No.2473/16 was allowed on 21.4.2018,
thereby the defendant was allowed to tender WS.
5. It is further contended that, second Motion of the plaintiff
for interim relief was decided by this court on 22.11.2018, thereby
dismissed the said Motion. The plaintiff being aggrieved by the
aforesaid order dated 22.11.2018, preferred an Appeal from Order No.
235/2018 before Hon'ble High Court. The Hon'ble High Court vide its
order dated 7.2.2019, set aside the order dated 22.11.2018, passed in
second Motion and remanded the matter to this court with directions to
decide the second Motion afresh after hearing respective parties. It is
contended that the second Motion was partly allowed by this court vide
order dated 13.3.2019. On 24.4.2019, this court framed issues and
matter was adjourned to 26.6.2019 for recording of evidence of the
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plaintiff.
6. It is further contended that, in the meantime, the plaintiff
being aggrieved by the order dated 7.2.2019 passed by Hon'ble High
Court preferred an Appeal from Order no. 12025/2019. The aforesaid
second appeal is admitted by the Hon'ble High Court vide order dated
30.8.2019. Thereafter, the plaintiff filed interim application no.1/2019,
seeking certain interim reliefs. The defendant contested the aforesaid
application by filing reply and same is pending before Hon'ble high
Court for final disposal.
7. It is further contended that, after amendment was allowed
by this court vide order dated 2.2.2017, the defendant and plaintiff
argued two Notice of Motions and those were decided by this court till
April, 2018. Thereafter, the plaintiff pressed for the second Motion for
interim relief, which was decided by this court. In the meantime, this
court framed issues on 22.4.2019. The plaintiff, without proceeding
with the trial, was very much interested to go for the interim reliefs and
therefore, filed various proceedings before Hon'ble High Court. The
aforesaid conduct shows that, he was merely interested in seeking
interim reliefs without going into merits of the matter.
8. It is contended that the advocate of the defendant no.2 had
prepared first draft of addition WS in the month of December 2018.
However, due to several round of litigations, defendant no.2 was
engaged with defending the proceedings filed by the plaintiff.
Therefore, it was slipped out of the mind of the advocate of the
defendant no.2 to get draft approved from defendant no.2. Thereafter,
on 25.6.2019, advocate of the defendant no.2 forwarded draft of
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additional WS to the defendant no.2 for suggestion and approval. The
defendant no.2 approved the same on 26.6.2019. However, whilst to
defending various proceedings, the advocate of the defendant no.2
forgot to verify the approved additional WS.
9. It is contended that, the amendment carried out by the
plaintiff vide Chamber Summons No.1964/16 are exhaustive in nature
and same needs to be dealt in detail by the defendant no.2 by putting
forth its defence. Trial in the present case is yet to commence and the
plaintiff has not filed his evidence in lieu of Examinationinchief. The
defence of defendant no.2 to the amended pleadings of the plaintiff is
material and relevant for proper adjudication of the present suit. The
delay in filing the additional WS is not intentional and there was no
malafide intention on the part of the defendant. In the event the
defendants are not allowed to file their additional WS, they will suffer
great loss which cannot be compensated in terms of money. Therefore,
the defendant prayed for allowing present Notice of Motion and permit
them to file additional WS on record.
10. The Notice of Motion is opposed by the plaintiff by filing
reply. The plaintiff denied the adverse allegations made by the
defendant. It is contended that, the defendant no.2 apart from above
bare statements, failed to produce any documentary evidence to suggest
that the draft was ready and given to the defendant for approval. It is
contended that, the defendant tendered his WS vide order dated
21.4.2018, whereas order allowing amendment in the plaint is passed
much prior to the said date i.e. it was passed on 2.2.2017 . Therefore,
defendant no.2 had earlier opportunity to file detailed reply to the
amended plaint. But the defendant failed to avail the same. Therefore,
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there is no ground made out for filing the additional WS. Hence, the
plaintiff prayed for rejection of the notice of motion.
11. Heard both sides. Perused Motion, reply and record and
proceedings. The plaintiff filed instant suit for declaration and specific
performance of agreement of sale. During pendency of the suit, the
plaintiff by way of Chamber Summons No. 1964/2016 sought
amendment in the plaint, which was allowed by my Ld Predecessor vide
order dated 2.2.2017. It is not in dispute that, the amended plaint was
served upon the defendant no.2 on 13.2.2017. It is further not in
dispute that, the defendants were allowed to file their WS vide order
dated 21.4.2018.
12. It is vehemently argued on behalf of the plaintiff that, this
court vide order dated 21.4.2018 while allowing the defendant to file
WS, in its order specifically observed that, the plaintiff has also
amended the plaint subsequently and therefore, that is only reason to
allow the defendant to file WS. Therefore, it is contended that, inspite
of having knowledge that the defendant filed its WS, the defendant
could have added the pleadings with respect to the amended portion of
pleadings of the plaintiff. But, he failed to do so, which shows malafide
intention on the part of the defendant no.2 to prolong the proceedings.
13. I have perused the W.S., which has been filed by the
defendant in view of order dated 21.4.2018. It appears that, the
aforesaid WS was ready and affirmed on 25.6.2016, which was much
prior to allowing the defendant no.2 to file the W.S. on record and
permitting the plaintiff to amend the plaint. It is also not in dispute
that, since 2016 till date, there are several interim applications filed by
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both sides, which went upto Hon'ble High Court. It is also not in dispute
that, the defendant no.2 contested aforesaid proceedings diligently. It is
the ground of the defendant no.2 that, it was slipped from the mind of
their advocate to file additional WS. I find this reason sufficient to
condone the delay.
14. I do not find any material showing that the defendant
purposefully slept over his right to file additional WS. I am of the view
that, in the event present Motion is allowed, no prejudice will be caused
to the plaintiff. On the contrary, if the defendant's additional WS is not
taken on record, the pleadings with respect to amended plaint would
remain undefended, which would certainly cause irreparable loss to the
defendant, though he is diligently proceeding with the defence. The
inconvenience caused to the plaintiff can be compensated by awarding
reasonable costs. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion 4690 of 2019 is allowed in terms of prayer
clause (a).
2. The delay of 934 days in filing additional Written Statement is
condoned subject to payment of costs of Rs.5,000/to be payable
by defendant no.2 to the plaintiff within a period of 15 days from
the date of the order.
3. Upon payment of aforesaid costs, additional Written Statement of
the defendant be taken on record.
4. Defendant no.2 to bear the costs of Motion.
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5. Notice of Motion is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 27.10.2021 Greater Bombay.
Dictated on : 27.10.2021
Typed on : 28.10.2021
Signed on : 29.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
29.10.21, at 2.30 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 27/10/2021
JUDGMENT/ORDER signed by P.O. on 29/10/2021
JUDGMENT/ORDER uploaded on 29/10/2021
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