Mansukh D. GothiVsMetro Cash and Carry India Pvt. Ltd. +10 more

Date: 28-08-2019
Business: Adv. Narendra Gharat for plaintiff present, he requested for extention for time for filing report.Time is extended.
None for defendant present.
Matter adjd for Report of WS to 10.10.2019.
Next Purpose: WRIT OF SUMMONS
Next Hearing Date: 10-10-2019

Date: 10-10-2019
Business: None present.
Matter adjd for Service 11.12.2019
Next Purpose: SERVICE
Next Hearing Date: 11-12-2019

Date: 11-12-2019
Business: P. O. is on training. Board is discharged.
Next Purpose: SERVICE
Next Hearing Date: 09-03-2020

Date: 09-03-2020
Next Purpose: SERVICE
Next Hearing Date: 16-04-2020

Date: 16-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: SERVICE
Next Hearing Date: 05-05-2020

Date: 05-05-2020
Next Purpose: SERVICE
Next Hearing Date: 27-05-2020

Date: 27-05-2020
Business: Due to Covid-19 lockdown
Next Purpose: SERVICE
Next Hearing Date: 12-06-2020

Date: 12-06-2020
Business: Due to Covid-19 Lockdown
Next Purpose: SERVICE
Next Hearing Date: 20-08-2020

Date: 20-08-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: SERVICE
Next Hearing Date: 26-10-2020

Date: 26-10-2020
Business: Due to Covid-19 Lockdown
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: SERVICE
Next Hearing Date: 11-02-2021

Date: 11-02-2021
Business: P.O. is on leave.
Matter is adjd to 23.04.2021 for Service
Next Purpose: SERVICE
Next Hearing Date: 23-04-2021

Date: 23-04-2021
Business: Due to Covid-19 pandemic.
Matter is adjd to 05/08/2021 for Service
Next Purpose: SERVICE
Next Hearing Date: 05-08-2021

Date: 05-08-2021
Business: P.O. on leave, hence adjd to
Next Purpose: SERVICE
Next Hearing Date: 21-08-2021

Date: 21-08-2021
Business: Adv. Gharat for plaintiff present.
Adv. For plaintiff sought time for filing service affidavit.  Time as prayed for is granted.
The matter is adjd for filing service affidavit to 28.09.2021.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 28-09-2021

Date: 28-09-2021
Business: Adv. S.G. Mahamuni for plaintiff present.  He sought time for filing service affidavit.  Time as prayed for is granted.
The matter is adjd for service affidavit to 29.10.2021.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 29-10-2021

Date: 29-10-2021
Business: Adv. Gharat for plaintiff present. He sought time for filing service affidavit.  Time as prayed for is granted.
The matter is adjd for service affidavit to 24.11.2021.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 24-11-2021

Date: 24-11-2021
Business: Adv. Gharat for plaintiff present.  He sought time for filing service affidavit.  Time as prayed for is granted.
The matter is adjd for affidavit of service to 03.12.2021.
Next Purpose: AFFIDAVIT OF SERVICE
Next Hearing Date: 03-12-2021

Date: 03-12-2021
Business: Adv. Gharat for plaintiff present.
Exh.9 - Adv. For plaintiff filed service affidavit (3 volumes).  T.O.R.
  Deft. nos.1 to 4 and 9 to 11 already appeared on 16.10.2019.  As per service affidavit (Exh.9), deft. nos.1 and 11 are duly served with writ of summons.  Plaintiff is directed to take steps as against deft. nos.5 to 8.
The matter is adjd for taking steps to 18.01.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 18-01-2022

Date: 18-01-2022
Business: Adv. S.G. Mahamuni for plaintiff present.
In view of Office Order No.07/2022 dated 07.01.2022, the matter is adjourned for steps to 10.02.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 10-02-2022

Date: 10-02-2022
Business: Adv. S. G. Mahamuni for plaintiff present.
In view of Office Order No.22/2022 dated 28.01.2022, the matter is adjd for taking steps to 18.02.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 18-02-2022

Date: 18-02-2022
Business: P. O. is on leave.
Hence, matter is adjourned to
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 11-03-2022

Date: 11-03-2022
Business: Adv. Kini along with Adv. S.G. Mahamuni and Adv. Gharat for plaintiff present.
The matter is adjd for steps to 25.03.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 25-03-2022

Date: 25-03-2022
Business: Adv. Adv. S.G. Mahamuni for plaintiff present.  He sought time for taking steps.  Time as prayed for is granted.
The matter is adjd for steps to 12.04.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 12-04-2022

Date: 12-04-2022
Business: Adv. Gharat for plaintiff present.  He sought time for taking steps.  Time as prayed for is granted.
The matter is adjd for taking steps to 15.06.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 15-06-2022

Date: 15-06-2022
Business: Adv. Gharat for plaintiff present.
K.B.
L.O. at 12.05 pm.
Adv. M.V. Kini along with Adv. Gharat for plaintiff present.
Exh.10 - Adv. For plaintiff tendered application praying that deft. nos.5 to 8 may be treated as served.
Heard Adv. For plaintiff on Exh.10.
The matter is adjd for order on Exh.10 to 17.06.2022.
Next Purpose: ORDER
Next Hearing Date: 17-06-2022

Date: 17-06-2022
Business: None present.
ORDER BELOW EXH.10
1.      Heard Adv. For plaintiff.  Plaintiff filed service affidavit at Exh.9.  As per service affidavit (Exh.9), writ of summons issued to defendant Nos.5 to 8 were returned as \''unclaimed/returned\''.  As per order dated 03.12.2021, plaintiff was directed to take steps against defendant Nos.5 to 8. On 15.06.2022, plaintiff filed present application praying to declare that writ of summons is served to defendant Nos.5 to 8.
2.         Ld. Counsel appearing for the plaintiff submits that writ of summons issued to defendant Nos.5 to 8 were returned as \''unclaimed\''. Defendant Nos.5 to 8 are deemed to be served with writ of summons. To buttress this submission, reliance was placed upon following judicial pronouncements -
(1)    Deepak Machineries Pvt. Ltd. V/s. Ispat Industries Ltd., 2004 SCC OnLine Bom 941.
(2)  Jenjon Retail and Services Pvt. Ltd. V/s. Lavasa Corporation Ltd., 2016 SCC OnLine Bom 5321.
3.    In case of Deepak Machineries (cited supra), statutory notice issued u/s.434(1)(a) of Companies Act was returned as \''unclaimed\''.  Hon\''ble Bombay High Court pleased to hold that statutory notice was served.
4.      In case of Jenjon Retail (cited supra), envelope containing arbitral award was returned as \''unclaimed\''. Hon\''ble Bombay High Court pleased to hold that unclaimed service amounts to a good service and it amounts to refusal to accept the delivery of the arbitral award.
5.         Both the judicial pronouncements cited by Ld. Counsel for plaintiff pertain to service of notice as per the  requirement of those statutes.  Both these citations do not cover issue of service of summons issued by the Court.  As per Rule 63 of the Bombay City Civil Court Rules, 1948, summons are required to be served in the manner provided by the Code of Civil Procedure.  Thus, service of writ of summons would be governed by Order 5 Rule 9 of C.P.C.
6.          In case of Udhav Baliram Adawale V/s. Babruwan Papanarsh Gaikwad, 2017 SCC OnLine Bom 6865, Hon\''ble Bombay High Court pleased to hold that Court cannot invoke presumptions either u/s.27 of the General Clauses Act or u/s.114 of the Evidence Act for the summons issued by the Court as per C.P.C.  Issue was before Hon\''ble Bombay High Court as to whether a postal envelope which is returned with the remark of \''unclaimed\'' would be a good service as per the Code of Civil Procedure.  Hon\''ble Bombay High Court, after taking into consideration Rule 9 of Order 5 of C.P.C., held that the summons or Court notices which are returned with the remark \''intimation posted\'' or \''unclaimed\'', cannot be treated as a good service.
7.         In view of the law laid down by Hon\''ble Bombay High Court in case of Udhav Adawale (cited supra), writ of summons which are returned as \''unclaimed\'' cannot be declared as served.   Thus, application is devoid of merits.  Therefore, it deserves to be rejected. In the result, following order.
ORDER
1.    Application (Exh.10) is rejected.
2.    No order as to costs.
3.    Plaintiff is directed to take steps as against defendant Nos.5 to 8.
The matter is adjd for taking steps to 12.07.2022.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 12-07-2022

Date: 12-07-2022
Business: Adv. Gharat for plaintiff present.
K.B.
L.O. at 03.50 pm.
Adv. S.G. Mahamuni for plaintiff present.  Plaintiff present.
Exh.11 - Application filed by plaintiff praying to delete names of deft. nos.5, 6, 7 and 8 from the cause title.
O. - Contents in the application are verified from plaintiff.  It is submitted on behalf of plaintiff that deft. no.1 company is duly served with writ of summons.  Therefore, plaintiff does not want to proceed as against deft. nos.5, 6, 7 and 8.  Plaintiff prayed to delete deft. nos.5, 6, 7 and 8 from the array of defendants.  Deft. nos.5 to 8 are yet to be served with writ of summons.  Plaintiff wants to delete deft. nos.5 to 8 from the array of defendants.  Therefore, plaintiff is permitted to delete deft. nos.5 to 8 from the cause title.  Plaintiff to carry out necessary amendment within 14 days.
The matter is adjd for compliance to 27.07.2022.
Next Purpose: COMPLIANCE
Next Hearing Date: 27-07-2022

Date: 27-07-2022
Business: Adv. Gharat for plaintiff present.  Plaintiff present.
Plaintiff has carried out amendment as per order dated 12.07.2022.
Adv. For plaintiff tendered draft S/J.  Leave to register and serve S/J is granted.
The matter is adjd for service of S/J to 22.08.2022.
Next Purpose: SERVICE
Next Hearing Date: 11-08-2022

Date: 11-08-2022
Business: By preceipe.  O. - Be taken on today\''s board.
Adv. Kunal Kataria for deft. no.1 present.
Adv. For deft. no.1 tendered reply to draft S/J.  Taken on record subject to confirmation.
The matter is already adjd for service of S/J to 22.08.2022.
Next Purpose: SERVICE
Next Hearing Date: 22-08-2022

Date: 22-08-2022
Business: None for plaintiff.
Adv. Kunal Kataria along with Adv. Asadulla Thangal i/b. AZB and Partners for deft. nos.1 to 4, 9 to 11 present.
Adv. For deft. nos.1 to 4, 9 to 11 tendered draft N/M on behalf of deft. nos.2, 3, 4 and 9.  Leave to register N/M is granted.
The matter is adjd for service of N/M to 06.09.2022.
L.O. at 04.10 pm.
Adv. Gharat for plaintiff present.  He tendered registered S/J No.235/22.  T.O.R.
The matter is already adjd to 06.09.2022 now for service of N/M and hearing on S/J.
Next Purpose: SERVICE
Next Hearing Date: 06-09-2022

Date: 06-09-2022
Business: Adv. Gharat for plaintiff present.
None for deft.
K.B.
L.O. at 03.00 pm.
Adv. Kunal Kataria along with Adv. Ashootosh Kothari i/b. AZB and Partners for deft. nos.1 to 4, 9 to 11 present.
Adv. For deft. nos.1 to 4, 9 to 11 tendered registered N/M No.3061/22.  T.O.R.
Plaintiff and his advocate are absent.
Adv. For plaintiff is directed to file reply to N/M and serve the copy thereof to other side in advance.
The matter is adjd for reply to N/M and hearing on S/J to 19.09.2022.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-09-2022

Date: 19-09-2022
Business: The Court is Vacant.
Hence, matter adjourned.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 07-10-2022

Date: 07-10-2022
Business: As court is vacant
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 15-11-2022

Date: 15-11-2022
Business: CORAM - H.H.J. SHRI. A. S. SALGAR, AD-HOC JUDGE AND ADDITIONAL SESSIONS JUDGE
(COURT ROOM NO. 31)
Matter pertains to Court room no. 14
Adv. Mitansh Shah for defendant NO. 1 to 4 and 9 to 11 present and tendered draft NM along with affidavit in support. O- Leave granted to register NM. Copy be served to other side.
Adjd for NM returnable to 25/11/2022
Next Purpose: REPLY
Next Hearing Date: 25-11-2022

Date: 25-11-2022
Business: CORAM - H.H.J. SHRI. A. S. SALGAR, AD-HOC JUDGE AND ADDITIONAL SESSIONS JUDGE
(COURT ROOM NO. 31)
Matter pertains to C.R. no. 14
Adv. Ashutosh Kothari for deft No. 1 to 4 and 9 to 11 present and tendered registered NM No. 4246/22. along with affidavit in support T.O.R.
Adjd for NM reply to 10/01/2023
Next Purpose: REPLY
Next Hearing Date: 10-01-2023

Date: 10-01-2023
Business: The Court is Vacant.
Hence, Matter is adjourned.
Next Purpose: REPLY
Next Hearing Date: 31-01-2023

Date: 31-01-2023
Business: The court is vacant
Next Purpose: REPLY
Next Hearing Date: 20-02-2023

Date: 20-02-2023
Business: The court is vacant. Hence, matter is adjd.
Next Purpose: REPLY
Next Hearing Date: 15-03-2023

Date: 15-03-2023
Business: The court is vacant. Hence, matter is adjd to.
Next Purpose: REPLY
Next Hearing Date: 12-04-2023

Date: 12-04-2023
Business: Court is vacant. Hence, case adjourned to
Next Purpose: REPLY
Next Hearing Date: 02-05-2023

Date: 02-05-2023
Business: As court is vacant. Hence, Matter is adjd to
Next Purpose: REPLY
Next Hearing Date: 20-06-2023

Date: 20-06-2023
Business: As court is vacant. Hence, matter is adjd to.
Next Purpose: REPLY
Next Hearing Date: 21-07-2023

Date: 21-07-2023
Business: Matter received from C.R.No. 14.
Adv. Narendra Gharat for plaintiff is present.
Adv. Kunal Katariya a/w Manish Shahi i/b A and Z
partnners for defendant is present.
O- Ld advocate for plaintiff orally prayed for time to file
reply to NM No. 4246/2022 and NM No.3061/2022.
Last opportunity is granted to the plaintiff to file reply
to the said NM’s.  If reply is not filed on the next date
then the NM’s will be heard and decided without reply.
If plaintiff wants to file reply on the next date then he
should served the copy in advance to the other side.
Matter is adj for NM reply to 17/08/2023
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 17-08-2023

Date: 17-08-2023
Business: None present for plaintiff.
Adv. Kunal Kataria i/b A & Z partners for def. is present.
ORDER
Matter is pending for reply of plaintiff on NM NO. 3061/2022 and 4246/2022.  on the last date ld. adv of plaintiff was granted last opportunity for filing reply on the said NM.  But today none appears for plaintiff till 12.45 p.m. and no replies are filed.  Therefore, both the NM filed by the defendant shall be heard without the reply of plaintiff.
L.O at 12.49 p.m.
Adv. Narendra Gharat for plaintiff is present and orally requested for time to make his oral submissions on both the NM.
By consent matter is adj for hearing on both the NM to 04/10/2023.
Next Purpose: NM FOR HEARING
Next Hearing Date: 04-10-2023

Date: 04-10-2023
Business: Court is on leave. Hence adj.to
Next Purpose: NM FOR HEARING
Next Hearing Date: 01-11-2023

Date: 01-11-2023
Business: Adv. Rohit Pande h/f Adv. Narendra Gharat for plaintiff is present and submitted that his senior is not available today.
Adv. Asadulla Thangal a/w Ashitosh Kothari i/b AZB and Partners for deft.nos. 1 to 4 and 9 is present and orally prayed to KB the matter.
L.O at 02.55 p.m.
Same appearance for plaintiff.
Adv. Kunal Katariya i/b AZB Partners for def is present.
Heard Ld. adv of def. on NM No. 4246/2022.
The ld adv of plaintiff prayed to KB the matter on the ground that his senior is on his way to the Court.
KB.. L.O at 05.05 p.m.
Adv. S.G. Mahamuni for plaintiff is present.
Same appearance of def.
Heard ld. adv of plaintiff on NM No. 4246/2022.
He has admitted that, there was an arbitration clause in the agreement executed between the parties.  O- Put up the matter for order on NM No. 4246/2022.
Matter is adj. for order on NM No. 4246/2022 to 07/11/2023 at 02.45 p.m.
Next Purpose: NM  ORDERS
Next Hearing Date: 07-11-2023

Date: 07-11-2023
Business: Adv. S.G. Mahamuni for plaintiff is present.
None present for def.
For The Reasons Separately Recorded.
Operative Part of Order.
1.	Notice of Motion No.4246 of 2022 is hereby allowed.
2.	The plaint in Commercial Suit No.450 of 2021 is hereby returned to the plaintiff and as per Section 8 of the Arbitration and Conciliation Act, 1996, the parties are hereby referred for arbitration in view of arbitration Clause 19.2 in their terms and conditions of purchase of goods and services dtd.21/08/2018 filed herewith as Annexure ‘B’.
Further order passed below Exh. 1.
Order below Exh 01
1.        In view of order passed below NM No. 4246/2022, the plaint is hereby returned to the plaintiff and the parties are referred for arbitration as directed in the order passed below NM No. 4246/2022 today.
2.	 Suit and NM No. 3061/2022 and Summons for Judgment No.235/2022 is stands disposed off.
Nature Of Disposal: PLAINT RETURN
Disposal Date: 07-11-2023

NOTICE OF MOTION/103061/2022
SUMMONS FOR JUDGT/100235/2022
NOTICE OF MOTION/104246/2022

Registration Number: 100450/2021
Transfer Date: 20-07-2019
From Court: 40 -
To Court: 7 - COURT  07 ADDL SESSIONS JUDGE

Registration Number: 100450/2021
Transfer Date: 20-07-2019
From Court: 7 - COURT  07 ADDL SESSIONS JUDGE
To Court: 40 -

Registration Number: 100450/2021
Transfer Date: 22-07-2019
From Court: 7 - COURT  07 ADDL SESSIONS JUDGE
To Court: 40 -

Registration Number: 100450/2021
Transfer Date: 09-01-2020
From Court: 40 - COURT 40 ADDL SESSIONS JUDGE
To Court: 59 - IC REGISTRAR CITY CIVIL COURT MUMBAI

Registration Number: 100450/2021
Transfer Date: 28-05-2021
From Court: 59 - Court 59 ADDL SESSIONS JUDGE
To Court: 32 - COURT 32 ADD. SESSIONS JUDGE

Registration Number: 100450/2021
Transfer Date: 20-07-2021
From Court: 32 - COURT 32 ADD. SESSIONS JUDGE
To Court: 14 - COURT 14  ADDL SESSIONS JUDGE

Registration Number: 100450/2021
Transfer Date: 17-07-2023
From Court: 14 - COURT 14  ADDL SESSIONS JUDGE
To Court: 32 - COURT 32 ADD. SESSIONS JUDGE

Filing Number: 115762/2018
Filing Date: 29-11-2018
First Hearing Date: 28th August 2019
Decision Date: 07th November 2023
Court Number And Judge: 32-COURT 32 ADD. SESSIONS JUDGE