Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.78/2019 in Sum. Suit No.475/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 78 OF 2019
CNR NO.:MHCC010002012019
IN
SUMMARY SUIT NO. 475 OF 2018
M/s. Midas Diagnostics ...Plaintiff
Versus
MDI Laboratories India Private Limited ...Defendant
Appearances:
Advocate Mr. Omkar Kelkar for the plaintiff.
Advocate Mr. Rajendra Yadav for defendant.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 24th APRIL, 2019.
ORAL ORDER
1. Defendant has stated that he is the Director of the Company and
his business is of diagnostics spread through out in India for which he
has to travel. Defendant has further stated that due to large scale nature
of work he was unable to look into details of the Writ of Summons
immediately when it was served to their Office. He has further stated
that his offices are at various locations and maintains the records. He
has further stated that he needed time to find out the record for his
defence, which took more time and it was not possible to collect all the
details within 10 days. He has further stated that for each and every
litigation, he has to call for Board Meeting and it is decided in the
meeting for which he has to wait for board decision. He has further
stated that there are complex business issue involved in this case.
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2. Plaintiff has filed reply and stated that the Writ of Summons
were served upon defendant on 14.09.2018 and defendant appeared in
the matter on 29.11.2018. Plaintiff has further stated that defendant
has stated frivolous reasons for delay of 57 days in filing appearance.
Plaintiff has stated that though defendant appeared he failed to file
Notice of Motion immediately. Plaintiff has further stated that the
Machine was installed by the plaintiff at Nanavati Hospital in Mumbai
and all the consumables were supplied at Nanavati Hospital. Hence, all
the records pertaining to the dealings between the plaintiff and the
defendant would be easily available at the defendants registered
address and there is no question of time being required to find the
records. He has further stated that defendant has been wrongly advised
to file the application for leave to defend, which is to be filed at a later
stage in the proceedings and prayed for rejection of Notice of Motion.
3. It appears there is delay of approximately 57 days in filing
appearance. Considering the fact that defendant is a Company, hence, it
is probable that defendant's Company took time to call Board Meeting
and decide accordingly. Hence, it appears delay on the part of
defendant is not intentional. But considering the reasons stated for
delay and in the circumstances of this case, it will be proper to condone
delay subject to cost to be given to plaintiff.
4. It appears defendant has also prayed for leave to defend. But yet
plaintiff has not taken out Summons for Judgment. Therefore, this is
not a proper stage to consider the application for leave to defend.
Hence, the order :
O R D E R
1. Notice of Motion No.78 of 2019 is partly allowed.
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:3: N.M. No.78/2019 in Sum. Suit No.475/2018
2. Delay in filing appearance within 10 as per Order XXXVII of the
Code of Civil Procedure, 1908 is condoned, subject to cost of
Rs.3,000/ to be given by defendant to plaintiff.
3. Notice of Motion No.78 of 2019 stands disposed of.
(S.P. AGARWAL)
Judge,
Date: 24.04.2019. City Civil Court,
Gr. Bombay.
Dictated on : 24.04.2019
Transcribed on : 24.04.2019
Signed on : 24.04.2019
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:4: N.M. No.78/2019 in Sum. Suit No.475/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02.05.2019 At 1:54 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
24.04.2019
Judgment/Order signed by P.O. on 24.04.2019
Judgment/Order uploaded on 02.05.2019
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