Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4846/2019 ..1.. Suit No.870/2018
CNR No. MHCC01-013255-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 4846 OF 2019
IN
SUIT NO.870 OF 2018
Juned Raza Khan. .. Plaintif
Versus
Arvind Yashwant Kumtekar and one. .. Defendants
Advocates
Sneha Prabhu for the plaintif
Anil Kharatmol for defendant No.1.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 18th February, 2020
ORAL ORDER
Present notice of motion is taken out on behalf of
defendant No.1 making prayer to condone the delay of 394
days in fling written statement of defendants and to take it on
record.
2. Advocate for defendant no.1 submitted that plaintif has
taken out notice of motion no. 4264 of 2018 for ad-interim
relief on 25.10.2018. Copy of the said notice of motion was
served on defendants on 15.11.2018 through RPAD but writ of
summons was not served on plaintif. On 15.11.2018,
defendants appeared before the Court and matter was
referred to National Lokadalat scheduled on 08.12.2018.
Defendants alongwith their advocate appeared before
Lokadalat but plaintif and his advocate were absent hence
parties are directed to attend the regular Court on 05.02.2019.
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Matter was placed for reply to notice of motion of plaintif and
adjourned to 19.03.2019. On 03.05.2019, defendants fled
reply to notice of motion and matter was adjourned to
10.07.2019 for hearing. On 10.07.2019, advocate for plaintif
sought time to fle rejoinder and matter adjourned on
07.08.2019. On 07.08.2019, advocate for plaintif again
sought time to fle rejoinder and matter is adjourned on
27.09.2019. Advocate for plaintif again sought time to fle
rejoinder and matter is adjourned on 10.10.2019. On
10.10.2019, advocate for plaintif fled rejoinder and matter is
adjourned to 16.10.2019 for hearing. Due to busy schedule,
the Court adjourned the matter on 16.11.2019. On
16.11.2019, notice of motion no.4264 of 2018 of plaintif is
partly allowed and matter was adjourned on 13.12.2019 to
take steps by defendants for fling written statement.
3. According to advocate for defendant no.1, notice of
motion of plaintif was on board for proceeding, hearing and
order from 25.10.2018 to 16.11.2019. Advocate for
defendants was busy in fling afdavit in reply to notice of
motion of the plaintif. Advocate for defendants obtained
certifed copy of entire roznama of the proceedings. He
received certifed copy on 07.12.2019 and on 13.12.2019,
present notice of motion is fled. Thus delay of 394 days is
caused in fling notice of motion to condone the delay in fling
written statement. Written statement of defendants is ready.
Delay is caused due to above mentioned reasons. Delay is
neither intentional nor deliberate. Defendants have good case
on merits. Hence prayed for making notice of motion absolute
in terms of prayer clause (a) and (b).
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NM No.4846/2019 ..3.. Suit No.870/2018
4. Advocate for the plaintif fled afdavit in reply to notice
of motion. Contention of advocate for the plaintif is that
defendants failed to fle their written statement inspite of
sufcient opportunities. Delay of 394 days in taking out notice
of motion is not explained by defendants. Hence prayed for
dismissal of notice of motion.
5. Suit is fled against defendants for declaration that the
plaintif is a bonafde purchaser of Godown No.5, ground foor,
Imam road, Null Bazar, Mumbai- 400 003 (suit premises) and
injunction restraining defendants from dispossession of the
plaintif. Filing of notice of motion no.4264 of 2018 by the
plaintif and time taken to dispose of the same is not in
dispute. Admittedly, both defendants appeared in said notice
of motion and fled their reply through the same advocate.
Reasons mentioned to fle present notice of motion belatedly
is reasonably explained by defendants. Considering the nature
of suit, opportunity needs to be given to defendants to
substantiate their defence. In the interest of justice and fair
trial, notice of motion needs to be allowed. However,
considering the length of delay in taking out present notice of
motion for fling written statement of defendants, plaintif
needs to be compensated in terms of some reasonable costs.
Under the facts and circumstances, following order.
ORDER
1. Notice of Motion No.4846 of 2019 is allowed and made
absolute in terms of prayer clause (a) and (b) subject to costs
of Rs.5,000/- to be paid to the plaintif within 15 days from the
date of order.
2. After payment of costs, written statement of defendants
be taken on record.
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3. Accordingly, notice of motion is disposed of.
(S. T. Soor)
Judge
Date : 18.02.2020 Gr. Bombay
Typed on : 18.02.2020
HHJ signed on : 18.02.2020
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NM No.4846/2019 ..5.. Suit No.870/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
18.02.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
18.02.2020
JUDGMENT/ORDER signed by
P.O. on
18.02.2020
JUDGMENT/ORDER uploaded on 18.02.2020
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