Final Order 1

Order Details: Order Below EX 1
Pdf Text: 1
IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
C.C. No. 1/MISC/2020
CNR No.MHMM180000712020
ORDER BELOW EXH1 IN CC NO.1/MISC/2020
IN CC NO.52/DV/2010
1. This is an application filed by the applicant in CC
No.52/DV/2010 for restoration of said CC No.52/DV/2010, which has
been disposed off before Lokadalat by an award dated 08.12.2018.
2. Perused application, say of the respondents. Heard both
sides at length.
3. With the consent of both the parties, matter was taken for
hearing for accepting written arguments. The respondents have filed the
written arguments on 09.10.2020. Thereafter, the applicant's advocate
failed to file written argument till today. Therefore, taken for order on
merit.
4. Having considered the arguments and the nature of
disposal of the proceedings in CC No.52/DV/2012 before Lokadalat,
the application for restoration of proceeding appears not maintainable
for more than one reason. The award by the Lokadalat alongwith the
consent terms filed on record shows that the award has been passed
only on the basis of consent terms bearing signatures of both the
parties. As rightly submitted by the respondent after more than a year,
the applicant filed this application without explaining the delay. Thus,
the delay is itself fatal to consider the prayer. Thus, the application
needs to be dismissed summarily.
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5. Even on merit the application is not tenable. Firstly, the
applicant herself in the application in para No.3 admitted that matter
has been amicably settled before Lokadalat. On the other hand, she
claimed that the consent terms were drafted by her advocate which was
accepted by the respondent No.1 also. But, the consent terms drafted
by her advocate are not submitted and the consent terms drafted by the
advocate of respondent was filed and the consent terms were not
explained to her and under pressure she put her signature. As such, the
applicant trying to pose that she got defrauded by entering into the
consent terms.
6. At the first blush, though the alleged emotional contention
of fraud appears attractive, but holds no water for a moment. As such, it
is merely an outcry without any reasonable basis, as the award was
passed after reading over consent terms to the parties and after
obtaining their signatures before Pannel of Lokadalat. It cannnot be
said that the consent terms were signed by the applicant under
pressure. The delay fortifies the said fact.
7. Secondly, nowhere it is mentioned in the application as to
what were the consent terms drafted by her advocate. Even those are
not filed on record. It is not explained what is deference in the consent
terms drafted by the advocate of respondents that of the consent terms
drafted by her advocate. In the absence of such contention or pleading,
it is not possible to ascertain the truth in the contention made by the
applicant.
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8. Non mentioning what is written in the alleged consent
terms drafted by her advocate and what is not acceptable to the
applicant, clearly shows that it is applicant, who don't want to abide by
the terms of consent as alleged by the respondents. The respondents in
their say categorically contended that it is the applicant, who is not
obeying the consent terms by nonwithdrawing the complaint filed by
the applicant and nonresiding in house at 'Goa' as agreed. Therefore, it
is applicant, who is making false claim only to harass respondents.
9. As applicant has not denied these facts alleged in the reply
of the respondent by nonfiling any counter, she appears to have been
admitted the same.
10. In these circumstances, the applicant failed to show any
ground to consider her application. The applicant is totally failed to
show any provision in law for restoration of main proceedings, which
has been disposed of by lawful award of Lokadalat. The award can be
executed by abiding conditions by the applicant herself and she can also
claim its execution by filing proceeding against respondents. The
applicant even failed to makeout any contention as to whether she
abided the consent terms or not ? Thus, the application sansmerit and
not maintainable. Hence, application stands dismissed.
Date: 22.10.2020 (Sudhir N. Shinde),
Ssl. Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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