Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 165/2019 in SUMMARY Suit No.1469 of 2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 165 OF 2019
IN
SUMMARY SUIT NO. 1469 OF 2017
Jhaveri Flexo India Limited …. Plaintiff
Versus
1. Allied Packaging
2. Nitin Mehta ….Defendants
Appearance:
Adv. Chitrangada Singh, Advocate for plaintiff.
Adv. Rajiv Hingu, Advocate for defendants.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 23/08/2019
ORDER
1. The notice of motion is filed by defendant to
condone the delay of 141 days to file leave to defend/reply
to the summons for judgment. The notice of motion is
supported by affidavit of Nitin Mehta the defendant No. 2.
He on oath stated that he was unable to file the reply to the
summons for judgment/leave to defend due to his ill health.
He could not find the documents in his records relied upon
by the plaintiff in the suit and it seems that the documents
relied by the plaintiff are sham, bogus and manipulated.
Hence prayed to allow the notice of motion.
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2. The plaintiff filed reply through affidavit of
Kunal Karsia the authorized representative of plaintiff. The
contents of notice of motion is denied in toto. The medical
reports of ill health is not produced on records by defendant.
The reason stated for condonation of delay is baseless and
not maintainable. Hence prayed to reject the notice of
motion.
3. Heard Adv. Rajiv Hingu for defendant and Adv.
Chitrangada Singh for plaintiff. Perused contents of notice of
motion and reply supported by affidavit. The defendant has
filed the list of medical papers to show his illness during the
period summons for judgment was served to him.
4. Adv. Rajiv Hingu for defendant argued that the
defendant No. 2 is sole proprietor of defendant No. 1 firm.
He has also drawn my attention to page No. 12 and 13 of the
list of document to show that on 23.06.2018 he was for
treatment of one day in Kohinoor Hospital and on
14.08.2018 there was a fracture on his right wrist joint.
5. On the other hand Adv. Chitrangada Singh for
plaintiff argued that on perusal of medical papers non of the
dates are in between the service of summons for judgment.
Therefore the reason of illness stated in the notice of motion
is baseless. The writ of summons was served to defendant on
23.03.2018. The summons for judgment was filed on
28.06.2018 and the notice of summons for judgment was
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served to the defendant on 18.07.2018. The defendant
issued letter on 19.07.2018 for inspection of the documents.
The inspection was given to the defendant on 27.08.2018.
Even though opportunity was given to the defendant he
failed to file leave to defend/reply to the summons for
judgment. Hence prayed to reject the application. Swarovski
India Pvt. Ltd V/s. SPA Agencies and Ors. (2009) ILR 6
Delhi 541 that on failure to explain sufficient cause the
defendant is not entitled to file leave to defend by condoning
the delay to file reply to summons for judgment. The
provision of order 37 has been enacted with an object that
the defendants do not unnecessarily prolong litigation and
prevent the plaintiff from obtaining early decree.
6. On going through the medical papers the
defendant is 66 years old. The defendant on oath has stated
that he was not keeping good health and the medical papers
on record though not in between the service of summons for
judgment but considering the age of the defendant the ill
health of the defendant cannot be denied. I have gone
through the authority relied by the Adv for plaintiff. In those
facts of the case the delay of 60 days was without any
justification. However in the present case the defendant has
filed on record the medical papers on which he has relied
and stated in the notice of motion. The defendant is very old
therefore there is sufficient reason shown by the defendant
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to condone the delay.
7. There is delay of 141 days to file leave to
defend/reply to the summons for judgment. Hence in the
interest of justice to give opportunity to the defendant to file
leave to defendant/reply to the summons for judgment, the
notice of motion needs to be allowed. The plaintiff can be
compensated with cost. Hence pass following order.
ORDER
1. The Notice of Motion is allowed on
payment of cost of Rs. 5000/(five
thousand only) to the plaintiff within
15 days failing which Notice of
Motion shall stand dismissed.
2. On payment of the above cost within
the above period the defendant to file
leave to defend/reply immediately.
3. Accordingly notice of motion is
disposed of.
(S.S. Nagur)
Date : 23/08/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 23/08/2019
Transcribed on : 23/08/2019
Signed on : 23/08/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF TYPIST
23/08/2019 & 5.55 pm : Mr. M. M. Patange
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 23.08.2019
Order
Judgment/Order signed by the P.O. on : 23.08.2019
Judgment/Order uploaded on : 23.08.2019
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