Rajesh Keshav Makhija v. Paresh Kantilal Mamtora And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.165 OF 2008 IN SUIT NO.2810 OF 1998 Rajesh Keshav Makhija ....Applicant/Plaintiff Vs.

Paresh Kantilal Mamtora and Anr.

....Defendants ---- None for applicant/plaintiff.

Ms. Achala Hatoda I/b. Mr. S.K. Jain for defendants. ---- CORAM : K.R.SHRIRAM, J.

DATE : 28th AUGUST, 2018 P.C.:

This notice of motion is for rejecting the counter claim no.8 of 2007 filed by defendants alongwith their written statement in the present suit as barred by period of limitation.

Issues have already been framed in the counter claim on 24th June 2014 and it reads as under :

(1) Whether the Plaintiffs to the Counter Claim prove that defendant to the Counter Claim is liable to pay and refund to the plaintiffs to the Counter Claim a sum f Rs.27,59,429/- together with interest @ 18% per annum?

(2) What order and decree?

Certainly while considering this counter claim, the Court will keep in mind whether the counter claim is barred by limitation. In the circumstances, nothing survives in this notice of motion.

2/3 Notice of motion accordingly disposed.

On 19th June 2017 recording of evidence of plaintiff's first witness commenced and it was inconclusive and matter was stood over to 10th July 2017. On 10th July 2017 the counsel appearing for plaintiff informed the Court that certain portions of the evidence affidavit cannot form part of testimony of witness and suggested that those portions be bracketed so that defendants need not cross examine on those points. Therefore, certain portions in the evidence affidavit of plaintiff's first witness was bracketed. The counsel for plaintiff also stated that plaintiff has located certain documents, photocopies of which were in the compilation file. The counsel also stated that he wanted some time to consider those documents and also give inspection of those documents to defendants and take further steps.

Ms. Hatoda, counsel for defendants states that thereafter plaintiff's counsel has not addressed any communication calling upon defendants to take inspection. Since 10th July 2017 there has been no progress in this suit which has been filed in the year 1998. Stand over to 6th September 2018 for marking of documents/ recording of evidence on which date plaintiff's first witness shall, without fail, remain present in Court. If plaintiff does not remain present like today, the suit will get dismissed for want of prosecution and if plaintiff's witness

3/3 does not remain present, plaintiff's evidence will be closed. by Gauri Amit Gaekwad Date:

2018.08.30 11:18:11 +0530 Gauri Amit Gaekwad (K.R. SHRIRAM, J.)