Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No.9/2018
in Summary Suit No.1200/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Chamber Summons No. 9 of 2018
(CNR NO. MH CC01-000069-2018)
In
SUMMARY SUIT No.1200 OF 2017
M/s. Kakad Engineers & Contractors
…....Plaintiff
V/s.
The State of Maharashtra & Ors.
....Defendants
Appearance:-
None present for plaintiff.
Mr. Kudalkar, Advocate for the defendant Nos.1 to 4.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 14th February, 2020.
ORDER
1. By this chamber summons, defendant No.4 has prayed to
condone delay in filing appearance.
2. In affidavit-in-support of chamber summons Mr. Vinay
Ambadas Bagade, Assistant Commissioner of Police, HQ-II averred that
writ of summons was served at the head office of Commissioner of Police
at Crawford Market, Mumbai on 27.10.2017. The Registration branch
after receiving papers in any suit, forward the same to the concerned
department of office of Police Commissioner office as per the procedure.
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2 Chamber Summons No.9/2018
in Summary Suit No.1200/2017
In the present matter, after perusing paper, registration Clerk forwarded
the paper along with writ of summons to the Building Branch (Desk-8) at
the Head Office. Building branch received the said papers on 03.11.2017.
Thereafter, the representative contacted office of Government Pleader on
08.11.2017. Therefore, there is delay of four days in filing the
appearance.
3. It is further averred that delay was caused because of the
receiving papers by the concerned department in the normal course of
business. Without wasting any time, the building branch immediately
approached the Government Pleader for filing appearance in the matter.
The delay is caused due to the circumstances beyond the control of
defendant No.4 and same is not either deliberate or willful. Accordingly,
it is prayed that the chamber summons may kindly be made absolute.
4. In affidavit in reply, it is averred by plaintiff that chamber
summons is not taken out by competent person and it does not discloses
sufficient cause to condone the deliberate and intentional delay and
therefore liable to be dismissed with cost.
5. It is further averred that chamber summons is taken out to
create interlocutory proceeding with a view to delay for making the
payment of bill amounts as claimed in the claim. As per the bailiff
report, the letter of request issued by Court was received by defendant
No.4 on 27.10.2017. Chamber summons is taken out by Assistant
Commissioner of Police who is not defendant No.4 and therefore the
same is liable to be rejected. The mandatory requirement of appearance
within ten days of service of letter of request is not complied with and
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3 Chamber Summons No.9/2018
in Summary Suit No.1200/2017
therefore plaintiff is entitled for decree. Summons for Judgment
No.276/2017, is also served on defendant No.4 on 21.01.2017, even
then defendant No.4 has not given any notice of appearance to the
plaintiff or his Advocate as contemplated in Order- XXXVII Rule 3(3) of
Code of Civil Procedure (In short “CPC”). It is further averred that
ignorance of law is not valid ground to excuse the delay in filing
appearance within Ten days. Till the date no appearance is filed by
defendant No.4.
6. Heard learned Advocate for defendant No.4. None present
for plaintiff. It is not disputed that the letter of request was served on
defendant No.4 on 27.10.2017. As per the mandate of Order XXXVII,
Rule 3(3) of CPC, defendant shall cause appearance within 10 days from
the date of service. Present chamber summons is filed on 04.01.2018.
Therefore, there is delay of 68 days in causing the appearance by
defendant No.4. The grievance of plaintiff is that defendant No.4 is
Commissioner of Police Brihan Mumbai Desk-8, Building, Police Head
Quarter Home Department Government of Maharashtra, where as
affidavit in support of chamber summons is tendered by Mr. Vinay
Bagade who is Assistant Commissioner of police, HQ-II and office of
Commissioner of police, Crawford Market, Mumbai. Therefore, chamber
summons taken out by Assistant Commissioner is not maintainable. On
perusal of chamber summons, it is mentioned that affidavit of Mr. Vinay
Bagade will be used in support of chamber summons. Therefore, I do not
find any substance in the contention of plaintiff that chamber summons
is not maintainable.
7. The reason mentioned in the chamber summons that the
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4 Chamber Summons No.9/2018
in Summary Suit No.1200/2017
papers in the suit were forwarded by Registration Clerk to the Building
Branch (Desk-8) at the head office and thereafter representative
contacted office of Government Pleader on 08.11.2017 are in respect of
the procedure followed by the office of defendant No.2. There is
substance in the contention of plaintiff that ignorance of law is not valid
ground to excuse in filing appearance within ten days. However,
considering the procedure adopted by office of defendant No.4 in
forwarding the papers to the concerned department and contacting to
Government Pleader thereafter, I am of the opinion that the delay of 68
days can be condoned on payment of sufficient cost to the plaintiff.
Resultantly, I pass following order.
ORDER
1) Chamber Summons No.9 of 2018 is made absolute in terms of
prayer clause (a) subject to cost of Rs.1,000/- (Rs. One Thousand
Only) to plaintiff to be paid on or before next date.
2) After payment of cost, the appearance of defendant No.4 be taken
on record.
3) Chamber Summons No.9 of 2018 stands disposed off
accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 14/02/2020
Dictated on : 14.02.2020
Transcribed on : 26.02.2020
Checked on : 02.03.2020
Signed on : 02.03.2020
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in Summary Suit No.1200/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
03.03.2020 05.40 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 14.02.2020
Order signed by P.O. on 02.03.2020
Order uploaded on 03.03.2020
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in Summary Suit No.1200/2017
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