Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010001672019
CNR NO. MHCC010001672019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.61 OF 2019
IN
SUMMARY SUIT NO.458 OF 2017
Manish Navinchandra Shah ]… Plaintiff.
V/s.
1. M/s. Orbit constructions ]
2. Pujit Aggarwal ]
3. Ravi Aggarwal ]... Defendants.
Appearances :
Ld. Adv. Mr. Mayur Sonawane for plaintiff
Ld.Adv. Mrs. V.C. Khatri for defendant No.2.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 21st April, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
No.2 for setting aside Exparte Judgment and decree dated 02.07.2018
and to strike out the name of defendant No.2 for the array of
defendants.
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2 NM 61/2019 in
Suit 458/2017
2. It was submitted by the defendant No.2 that as per the
Judgement and decree dated 02.07.2018 the present defendant No.2
alongwith other defendants was directed to pay a sum of Rs.3,37,316/
with further interest at the rate of 12% per annum on the principal sum
of Rs.2,50,000/ from the date of the suit till its realization.
3. The defendant No.2 is not liable to pay any amount as he
retired from the partnership Firm of defendant No.1 since April, 2005.
The suit was filed in the year 2017. He is not aware whether he was
served with the Writ of Summons. The defendant No.2 was arrested by
Azad Maidan Police Station on 08.09.2016. He was in police custody
and thereafter in judicial custody till 20.07.2017. He was arrested in
various offences. He was released on bail on 20.07.2017. After his
release from judicial custody it took some time for attending his
business. There were several cases pending against him and he was
busy in the cases pending against him. He is not aware whether he was
served with the summons or not. In the second week of October, 2018
he became aware about the passing of the decree. It was submitted that
he is having a good case on merit and the delay is not intentional and
deliberate therefore, Exparte decree be set aside or he will suffer
irreparable loss.
4. The plaintiff filed reply and denied the contention of
defendant No.2. It was submitted that the present Notice of Motion is
false and untenable. The defendant No.2 was duly served with writ of
summons but still he had not filed his appearance and therefore the
decree was passed. He had not mentioned sufficient cause for delay in
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3 NM 61/2019 in
Suit 458/2017
taking out Notice of oMotion and therefore, Notice of Motion be
dismissed.
5. Heard Learned Advocate for defendant No.2 and plaintiff.
The defendant No.2 had filed the Motion for setting aside the Exparte
Judgement and decree dated 02.07.2018. It seems that defendant had
mentioned that he was arrested by the police in the Month of
September, 2016 and till 20.07.2017 he was in jail and after his release
on bail he was busy in the Court matters and therefore could not filed
his appearance. It seems that the plaintiff had not denied this reasons
of defendant No.2. It seems that the reasons mentioned in the Notice of
Motion are sufficient to show that the defendant could not appear in the
matter. The defendant on oath stated that there were several matters
pending against him and therefore, he could not file his appearance in
the present matter. It seems that a decree for recovery of the amount
was passed against the defendant No.2 and if the decree is not set aside
the defendant will suffer irreparable loss, damage and harm. Whereas
no such harm will cause to the plaintiff. The defendant No.2 had
shown sufficient cause so as to condone the delay if any in taking out
the Notice of Motion. The delay if any caused does not appear to be
deliberate and intentional and therefore an opportunity is be granted to
defendant No.2 to represent himself in the suit.
6. The defendant also prayed to strike out his name in the
suit. It seems that the said contention of the defendant No.2 will be
decided at appropriate stage in the suit and therefore, at present there
does not seem any reason to strike out the name of defendant No.2. I,
therefore proceed to pass the following order:
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Suit 458/2017
ORDER
1. The Notice of Motion No.61 of 2019 is partly allowed.
2. The judgement and decree passed in Suit No.458 of 2017 is set
aside only against defendant no.2.
3. The Summary suit 458 of 2018 is restored against defendant
No.2.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 21042022 City Civil Court, Gr. MUMBAI
Dictated on : 21042022
Transcribed on : 06052022
checked on : 09052022
Signed on : 09052022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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Suit 458/2017
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.05.2022 at 11.20 a.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
21.04.2022
Judgment/order signed by P.O. on 09.05.2022
Judgment/order uploaded on 09.05.2022
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