Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.145 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 setting
aside exparte order dated 01.03.2018.
2. It is argued on behalf of defendant that she is proprietor of
defendant no.1 and residing at Aurangabad. She has engaged advocate.
So she was under belief that advocate is appearing on due dates and
will inform the further progress to her. However, advocate has not kept
contact with her. Therefore, she has personally taken the search in
which it revealed that said advocate never appeared on her behalf and
therefore, on 01.03.2018 Court has passed exparte order against her.
The delay is not intentional one. It was because of the fault of the Ld.
Advocate. She is ever ready to contest the suit. Her valuable rights are
involved in the matter. Therefore, the exparte order may be set aside
and her written statement be taken on record.
MHCC010004082019
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NM 145/2019 .. 2 .. Suit No.2532/2015
3. The Ld. Counsel for plaintiff has resisted this application on
the ground that exparte order is passed on 01.03.2018. She has served
with summons on 10.10.2016. It goes to show that after one and half
year Court has passed the exparte order. The reason shown by
defendant is imaginary and false. She cannot blame her advocate for
her own fault. The delay is not properly explained. The application is
nothing but delay tactic. Therefore, it may be rejected.
4. It is admitted position by defendant that she has received
summons on 10.10.2016 while exparte order is passed on 01.03.2018.
By way supporting affidavit she has taken the defence that her advocate
to whom she has engaged has never appeared before the Court. So on
oath she has made said statement. Therefore, there is no reason to
disbelieve her version. In absence of any material to contrary there is
no reason to disbelieve her submission that because of her advocate the
delay is caused. Any how it is a rule of natural justice that no one
should be condemned unheard. Each and every party must get full and
fair opportunity to put its case. It will give finality to the dispute as well
as curtail the multiplicity of the litigation. Therefore, by all fairness I
am of the opinion that opportunity must be given to defendant to
defend the suit. At the most some cost can be imposed. Accordingly
the order.
ORDER
1. NM No.145/19 in SU No.2532/15 is hereby allowed.
2. The exparte order dated 01.03.2018 passed against the
defendant is hereby set aside on payment of cost of
Rs.1,000/ to the plaintiff on or before next date or to
deposit it in the Court.
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NM 145/2019 .. 3 .. Suit No.2532/2015
3. On compliance of cost order defendant's written statement
be taken on record.
( 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.
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