Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010000172020
CNR NO. MHCC010000172020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.02 OF 2020
IN
S.C. SUIT NO.1318 OF 2017
CRYSTAL PHARMA ]… Plaintiff
V/s.
VEXTA LABORATORIES PVT. LTD. ]...Defendant.
Appearance:
Learned Advocate Mr. Hitesh Shah for plaintiff.
Learned Advocate Mr. Devghar Hariya i/b Mishra & Company for
defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 27th January, 2021
ORAL ORDER
1. Defendant took out this Chamber Summons to condone
delay in filing Vakalatnama and to take Vakalatnama on record.
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2. Perused Chamber Summons, affidavit in support of
Chamber Summons and reply of plaintiff.
3. Heard Learned Advocate Mr. Hitesh Shah for plaintiff and
Learned Advocate Mr. Devghar Hariya i/b Mishra & Company for
defendant.
4. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether delay in filing Vakalatnama of
defendant on record can be condoned?
In the affirmative.
2. Whether Vakalatnama of defendant can
be taken on record ?
In the affirmative.
3 What Order ? Chamber Summons
is allowed as per
final order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the defendant that, writ of
summons served upon the defendant on 19.12.2017 through RPAD. It
was expected to file Vakalatnama within 10 days from the date of
service however, in the meantime the Court Vacation commenced, and
thereafter the Advocate of defendant was travelling out of Mumbai after
vacation. Therefore there is delay in filing the Vakalatnma. Draft
Chamber Summons filed on 12.01.2018. It is registered on 02.01.2020.
6. In brief, it is contention of the plaintiff that filing of this
Chamber Summons is an attempt to harass the plaintiff. Defendant is
delaying the matter by adopting dilatory tactic. The Chamber Summons
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filed in the year 2018 and it is not registered by obtaining leave on the
date of filing the reply
7. The writ of summons served upon defendant on
22.12.2017. Draft Chamber Summons filed on 12.01.2018. It is
registered on 02.01.2020.
8. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant as per Rule 2 of
Order 37 and the defendant may at any time within ten days from such
service enter an appearance either in person or by pleader and he shall
file in Court an address for services of Notice on him.
9. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
10. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
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11. There is delay in filing the Vakalatnama. Perused Roznama
dated 18.04.2019. It is mentioned therein that defendant failed to
comply the provisions of Order 37 Rule 5 of the Code of Civil Procedure
after service of summons for judgment and therefore suit to proceed
further with liberty to defendant to take appropriate steps. Perused
Roznama dated 15.02.2018. On that date plaintiff filed draft Summons
for Judgment and affidavit in support thereof. On that date defendant
and Advocate of defendant were absent. Perused Roznama dated
04.05.2018. On that date Advocate for defendant was absent. He did
not take steps for hearing of Chamber Summons. On 19.10.2020
plaintiff tendered its affidavit in the lieu of examination in chief
alongwith compilation of documents. Documents were marked on the
same date and matter proceeded for ex-parte Judgment. Defendant and
Advocate for defendant both were absent on that date. Perused
Roznama/Noting dated 23.11.2019. On that date plaintiff and his
Advocate both were present. Advocate for defendant was also present.
Representative of defendant was also present. No steps were taken on
that date and matter was adjourned for ex-parte Judgment on
21.12.2019. Perused Roznama dated 21.12.2019. On that date
Advocate for defendant filed Vakalatnama. It was brought to the notice
of the Court that Vakalatnama filed by earlier Advocate on behalf of the
defendant is already on record. Sheristedar informed to the Court that
earlier Vakalatnama is filed alongwith draft Chamber Summons. Leave
was granted to register the Chamber Summon. Vakalatnama of
advocate Mishra for defendant was taken on record only for Chamber
Summons. Thereafter, matter adjourned for Ex-parte Judgment on
02.01.2020.
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12. Perused Roznama dated 02.01.2020. On that date both the
advocates were present. Advocate for defendant filed an application for
extension of time to register the Chamber Summons. Defendant was
directed to register the Chamber Summons on that date itself and
matter adjourned for Chamber Summons hearing and ex-parte
Judgment to 17.02.2020.
13. There is delay in filing Vakalatnama. Even after filing the
Chamber Summons it was not registered for long time. Considering the
facts and circumstances and grounds for delay mentioned in the
affidavit in support of Chamber Summons, I am of the opinion that
delay in filing the Vakalatnama can be condoned and defendant can be
permitted to enter it’s appearance. Hence, I record my findings to
point Nos.1 and 2 in the affirmative and point No.3 as per final order.
Hence, following order:
ORDER
Chamber Summons no. 02 of 2020 in Summary Suit no. 1318 of 2017 is
allowed as under-
1. Delay in filing Vakalatnama by defendant is hereby condoned.
2. Defendant is allowed to enter its appearance.
3. Costs in cause.
4. The order is dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 27/01/2021 City Civil Court, Gr. MUMBAI
Dictated on : 27.01.2021
Transcribed on : 28.01.2021
Checked on : 29.01.2021
Signed on : 29.01.2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.01.21 at 03.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 27.01.2021
Judgment/order signed by P.O. on 29.01.2021
Judgment/order uploaded on 29.01.2021
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