Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No.48/2018
in Summary Suit No.1200/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Chamber Summons No. 48 of 2018
(CNR NO. MH CC01-000251-2018)
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 3.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 14th February, 2020.
ORDER
1. By this chamber summons, defendant Nos.1 to 3 have
prayed for condonation of delay in filing appearance.
2. Mr. Sachin Anandrao Kamble, Civil Engineer, Assistant at the
office of Deputy Engineer, West Sub-Division, Public Works Department,
Malabar Hill, Mumbai has tendered affidavit in support of notice of
motion. It is averred that writ of summons was served at the Head office
of Presidency Division, Bandhkam Bhavan, 2nd Floor, 25th Marzban Road,
Fort, Mumbai on 31.10.2017. According to the procedure, the Division
office after receiving papers in any suit or legal matters forward the same
to the concerned department of P.W.D. In the present matter, after
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2 Chamber Summons No.48/2018
in Summary Suit No.1200/2017
perusing the papers, registration Clerk forwarded the papers to
defendant Nos.2 and 3 on 06.11.2017. Thereafter, the representative
contacted the office of Government Pleader on 14.12.2017. Therefore,
there is delay of 54 days in filing appearance in the matter.
3. It is further averred that the delay was caused because of the
receiving papers by the concerned department in the normal course of
business. Without wasting any time, the concerned department
approached the Government Pleader for filing appearance in the present
matter. It is for the first time that defendants came to know that in
summary suit they have to enter appearance within ten days. The delay
is caused due to the circumstances beyond their control and the 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 taken out by defendant Nos.2 and 3 for condonation of
delay. Chamber summons is not taken out by competent person and it
does not disclose sufficient clause.
5. It is further averred that chamber summons is taken out
deliberately to create interlocutory proceedings with view to delay for
making payment of bills amounts as claimed in the plaint. Chamber
summons is taken out by Civil Engineer, Assistant and he is not
defendant Nos 2 and 3. No appearance is filed by defendant No.1. As
per the bailiff report, the letter of request issued by Court was received
by defendant Nos.2 and 3 on 27.10.2017. Chamber summons is taken
out by Civil Engineer, Assistant who is not defendant Nos.2 and 3 and
therefore the same is liable to be rejected. The mandatory requirement
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3 Chamber Summons No.48/2018
in Summary Suit No.1200/2017
of appearance within the ten days from the service of letter of request is
not complied with and therefore plaintiff is entitled for decree.
Summons for Judgment No.276/2017, is also served on defendant Nos.2
and 3 on 21.01.2017, even then defendant Nos.2 and 3 have 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 Nos. 2 and 3.
6. Heard learned Advocate for defendant Nos. 2 and 3. None
present for plaintiff. It is not disputed that the letter of request was
served on defendant No.2 and 3 on 06.11.2017. As per the mandate of
Order XXXVII, Rule 3(3) of CPC, defendants shall cause appearance
within 10 days from the date of service. Present chamber summons is
filed on 08.01.2018. Therefore, there is delay of 62 days in causing the
appearance by defendant Nos.2 and 3. The grievance of plaintiff is that
defendant Nos.2 and 3 are the Executive Engineer and Deputy Engineer
(W) of P.W.D., where as affidavit in support of chamber summons is
tendered by Mr. Sachin Anandrao Kamble, who is Civil Engineer,
Assistant at the office of Deputy Engineer, West Sub-Division, Public
Works Department, Malabar Hill, Mumbai. Therefore, chamber
summons taken out by Civil Engineer, Assistant is not maintainable. On
perusal of chamber summons, it is mentioned that affidavit of Mr. Sachin
Anandrao Kamble 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.48/2018
in Summary Suit No.1200/2017
papers in the suit were forwarded by Registration Clerk to the P.W.D.
office and thereafter representative contacted office of Government
Pleader on 14.12.2017 are in respect of the procedure followed by the
office of defendant Nos.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 Nos.2 and 3 in forwarding the papers to
the concerned department and contacting to Government Pleader
thereafter, I am of the opinion that the delay of 62 days can be condoned
on payment of sufficient cost to the plaintiff. Resultantly, I pass following
order.
ORDER
1) Chamber Summons No.48 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 Nos.1 to 3
taken on record.
3) Chamber Summons No.48 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 : 27.02.2020
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 05.43 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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