Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.66 OF 2019
IN
S.C. SUIT NO.2532 OF 2015
M/s. Macmillan Publishers India Ltd. … Plaintiff
V/s.
Nutan Book Stationers & Anr. … Defendants
Appearances :
Ld. Adv. Salman Athaniya for plaintiff.
Ld. Adv. Prashant Jadhav for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 25th JULY, 2019
ORDER
Defendant has taken out this notice of motion for
condoning the delay of 2 years and 47 days.
2. It is argued on behalf of defendant that she is residing at
Aurangabad. On 10.10.2016 she has received the suit summons.
Accordingly she has engaged advocate to appear before the Court. She
was under impression that her advocate is appearing before the Court
on due dates. However, she has not received any communications from
advocate . Therefore, on personal inquiry she came to know that her
advocate has never appeared on her behalf and noticing her absence
Court has passed exparte order on 01.03.2018. The delay is not
intentional one nor it was caused because of her fault. She is every
MHCC010001762019
-- 1 of 3 --
NM 66/2019 .. 2 .. Suit No.2253/2015
ready to contest the suit. Her valuable rights are involved in the matter.
Therefore, the delay of 2 years and 47 days for taking out this notice of
motion may be condoned.
3. Ld. Counsel for plaintiff has resisted the application. It is
argued that when defendant has received the suit summons it was her
duty to appear before the Court. She cannot blame her advocate. The
grounds taken by her are imaginary. There is too much delay in taking
out the notice of motion. As the delay is not properly explained it may
not be condoned.
4. This application is filed by defendant under order IX rule 7
of CPC for condoning the delay and setting aside the exparte order.
During course of argument the Ld. Counsel for defendant has relied on
one judgment of Hon'ble Panjab and Haryana High Court decided on
11.07.2018 in Civil Revision Application No.4223/2018. In said
judgment it is observed that 30 days period of limitation is for making
application for setting aside exparte decree. No such period of
limitation is prescribed for filing application for setting aside exparte
order. At the most it can be said that there is the limitation of 3 years
period to file such application. Considering the ratio laid down in
citations this application being for condoning delay for taking notice of
motion for setting aside exparte order, no period of limitation of 30
days will apply. Moreover, as per reason she was under bonafide belief
that her advocate might have appearing on due dates. So the delay is
not because of her own wrong. So considering above citations and
reasons put forth for delay I am of the opinion that the delay needs to
be condoned. At the mot certain cost can be imposed. With this I
proceed to pass the order.
-- 2 of 3 --
NM 66/2019 .. 3 .. Suit No.2253/2015
ORDER
1. NM No.66/19 in SU No.2532/15 is hereby allowed.
2. The delay of 2 years and 47 days in taking out the NM is
hereby condoned on payment cost of Rs.1,000/ to be paid
to the plaintiff on or before next date or to deposit it in the
Court.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 25/07/2019 City Civil Court, Gr. Mumbai
Dictated on : 25.07.2019
Transcribed on : 01.08.2019
Signed on : 03.08.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07.08.2019 03.10 p.m. Sanjay B. Kaskar
(StopGap Stenographer)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
25.07.2019.
Judgement/order signed by P.O on 03.08.2019.
Judgement/order uploaded on 07.08.2019.
-- 3 of 3 --