Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.160-2020 in
Suit No.1392-2018
MHCC010008832020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.160 OF 2020
IN
SUIT NO.1392 OF 2018
Indian Octroi Corporation ]
A Partnership Firm, ]
Through its partner, ]
Girish M. Vora, Having address ]
at Rammandir L. B. S. Marg, ]
Mulund Check Naka, ]
Mumbai- 400 080. ] … Plaintiff.
Versus
1. Mataprasad D. Rai ]
2. Devidas Purshottam Giri (Expired) ]
3. Shayamlal Choube ]
4. Manohar Ramlal Choudhary ]
All Trustees of Baba Laldas ]
Raghuvirdas Charitable Trust, ]
Having its office at 1, Shiv Sadan ]
Building, Ground Floor, ]
Ratanbai Compound, Shivaji ]
Nagar, Checknaka, Thane. ]
5. Shakuntala Sampat Vaishnav ]
Widow of late Sampat Vaishnav ]
Presently residing at Vishwajit ]
building, 3rd Floor, Shivaji Nagar, ]
Walge Estate, Checknaka, Thane ]
6. Sonia Mohan Sampat ]
7. Siddharth Mohan Sampat ]
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All residing at Vishwajit Building, ]
3rd Floor, Shivaji Nagar, Wagle Estate, ]
Checknaka, Thane. ]
8. Sham Sampat Vaishnav ]
Aged about 37 years, residing at ]
Vishwajit Building, 3rd Floor, ]
Shivaji Nagar, Wagle Estate, ]
Checknaka, Thane. ]
9. Surekha Ramesh Ghor ]
Residing at Mahavir Darshan, ]
1st Floor, Shivaji Nagar, Thane. ]
10.Chapsi Karia ]
Residing at A/102, 1st Floor, Satya ]
Sangam Building, Shivaji Nagar, ]
Wagle Estate, Thane. ] ...Defendants.
Appearances :-
Learned advocate Ranawat for plaintiff.
Learned advocate B.A. Singh for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 24.12.2024
O R D E R
The defendants have taken out present notice of motion for
claiming the reliefs inter alia;
(a) To set aside and quash the order dated 05.12.2019 passed
in notice of motion No.2529 of 2018 in S. C. Suit No.1392 of
2018 and said notice of motion be restored to file for hearing on
merit.
(b) Pending the hearing and final disposal of the notice of
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motion, the operation of order dated 05.12.2019 passed below notice of
motion No.2529 of 2018 in S.C. Suit No.1392 of 2018 be stayed.
(c) To grant ad-interim stay in terms of prayer (b) above.
(d) To provide the Costs of the notice of motion.
(e) To grant such other and further reliefs as this Court may deem fit
and proper.
2. In affidavit in support, the defendants have contended that
notices were served upon the defendant No.1 by the Court Receiver of
Hon’ble High Court Bombay along with copy of order dated 05.12.2019
by speed post at the address of defendant No.1 on 23.12.2019. But his
Advocate was out of station since 20.12.2019 and came back on
01.01.2020. According to this defendant, his advocate had checked the
Roznama of this suit on 02.01.2020 and found that there being remark
of 'left' by the postal authority and further service by publication. It is
also contended that the public notice was published in the newspaper of
the language to which the defendants are not conversant. In fact, no
proper service was effected upon the defendant No.1 and that being
reason that till 23.12.2019, he was not aware about pendency of this
suit.
3. It is further contended that after going through the
contents of the said notice, he was shocked and surprised to see as to
how the plaintiffs have obtained an order dated 05.12.2019 from this
Court by playing fraud, about service of Writ of Summons and said
notice of motion upon the defendant No.1 and on the defendant No.3
and 4 by getting remark of ‘left' from the concerned postman, while
facts remains that address mentioned in this notice of motion is his
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residential address and either him or any of his family members always
remain there.
4. It is also contended that on the given address, the notice
issued by the Court Receiver is duly served upon him. It indicates that
the defendants Nos.1 to 4 are residing on the given address. According
to the defendants, if the remark of postman would have been genuine,
the Court Receiver of Hon’ble High Court, Bombay could not have been
served the notice upon the defendants by speed post. It is further
contention of the defendants that alleged service by publication was
also not proper, as no such notice has come to their knowledge. If at all
the plaintiff was interested in obtaining order on merits in the aforesaid
notice of motion, they could have served the Writ of Summon and said
notice of motion by Thane District Court through Bailiff in which area,
the house of defendants No.1 to 4 is situated. According to the
defendants No. 1 to 4, the intention of the plaintiff in obtaining the
impugned order was not bona-fide, as being afraid of not getting the
same on merit and therefore they have adopted above referred illegal
tactics of service and succeeded in obtaining the impugned order ex-
parte without effective service upon the defendants No.1 to 4. It is
further contended that such impugned order is obtained without service
of Writ of Summon and notice of motion upon the defendant No.1 apart
from the fact that this being a second attempt to get possession of the
suit premises indirectly, when they failed in their first attempt as their
M. A. No. 47 of 2017 was dismissed on merit on 26.10.2017 which was
also indirectly for the same relief as asked in this suit and even the
plaintiffs did not challenge the said order. According to the defendants,
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the impugned order is required to be set aside and the defendants No. 1
to 4 be permitted to contest the said notice of motion on merit.
5. The plaintiff has resisted the motion by filing reply mainly
on the grounds that on 04.01.2020 the Learned Court Receiver in
compliance with the Order dated 05.12.2019 tried to take possession of
the suit property from the defendants but they did not offer the
possession of the suit property to the Learned Court Receiver. According
to the plaintiff, the Court Receiver has already filed his report on record
and the defendants No.1 to 4 are not entitled for getting any reliefs as
they have disobeyed the order passed by this Court. It is submitted that
there is delay of 13 months in taking out the present notice of motion
after passing the ex-parte order against the defendants No.1 to 4 and
they have not mentioned the reasons and period of delay in the present
notice of motion. Hence, he prays to dismiss the motion.
6. The defendants by way of affidavit of rejoinder denied the
contention of plaintiff and submitted that the defendants are Hindi
language speaking person, as they do not able to read and write other
languages except Hindi and the partner of the plaintiff despite knowing
the said facts purposely tried to serve the writ of summons through
English and Marathi Newspaper instead of through Hindi Newspaper
and succeeded in their attempt by obtaining ex-parte order in the
absence of defendants. It is further submitted that the plaintiff filed a
false affidavit of service on 12.04.2019, regarding service of notice of
motion No.2529/2018 while in reality no service of said notice of
motion was effected upon the defendants, except making formality and
that too without allowing the postman to reach at the defendants given
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address and still getting remark of "not known" on the envelope of
Registered A. D. by managing the concerned postman. It is further
submitted that on the said given address of the defendants, there is a
Trust of which the defendant No.1 is one of the trustees, where either of
his family member residing and available there during 24 hours of day.
Therefore, Court Receiver's notice dated 20.12.2019 was served upon
the defendant No.1 at very same address, while envelope of Registered
A. D. sent through the plaintiff for service of Writ of Summons and
notice of motion remained to be served upon the defendants by getting
respective remark of "left" and "not known" although the address being
same. Hence, it clearly establishes that the partner of the plaintiff
played fraud upon the Court in obtaining ex-parte order dated
05.12.2019 with the help of their alleged service. Hence, same is
required to be set aside otherwise the plaintiff would continue to play
such mischief. Even the plaintiff purposely did not attempt to serve the
Writ of Summons and notice of motion as per order VI Rule 14-A of
Civil Procedure Code by affixing copy thereof on their door of residence
and hence on this count also said ex-parte order dated 05.12.2019 is
liable to be set aside.
7. The plaintiff has opposed the present notice of motion by
filing the reply mainly on the ground that on 04.01.2020 the learned
Court Receiver in the compliance of the order dated 05.12.2019 tried to
take the possession of the suit property from the defendants. The
defendants did not offer the possession of the suit property to the
learned Court Receiver and report in that respect is already filed on
record by the receiver. Therefore, no relief of any nature can be granted
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to such party who disobeys the order of this Court. Hence, the plaintiff
prays to reject the present notice of motion.
8. Perused the notice of motion, reply and the record. Heard
both sides.
9. According to these defendants, the plaintiff ought to have
served the Writ of Summons and the notice regarding notice of motion
through the bailiff of the Thane Court. The record and service report
clearly indicate that on 29.06.2018, this Court has issued Writ of
Summons through Bailiff. But the defendants are residing outside the
jurisdiction of this Court, hence, the board department of this Court has
sent the Writ of Summons through SPEED POST to the defendant No. 1
to 10. But 07 postal envelope have returned with endorsement as “Left”
and the defendant No.7 has refused to accept the service hence the
envelope had returned with endorsement as “Refused”. It further
appears that the defendant Nos. 8 and 10 have accepted the service,
therefore, the board department has received two acknowledgments.
10. The roznama dated 27.09.2018 reflects that the plaintiff
sought permission from the Court to serve the defendants No.1 to 6 and
9 through paper publication. The record further indicates that the
defendant Nos. 1 to 6 and 9 were served through paper publication. On
12.12.2018 the suit proceeded ex-parte against the defendant Nos. 1 to
6 and 9. It further appears that the plaintiff sought permission from the
Court to serve the notice of motion on the defendants separately.
11. The service report filed on 12.04.2019 on record clearly
goes to show that the attempt was made to serve the notice of motion
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upon the defendants through Speed Post. But the envelopes sent to the
defendant Nos. 1 to 4 were returned with endorsement as “Not Known”.
The envelops sent to the defendant Nos. 5 to 9 were returned with
endorsement as “Incomplete Address”. Therefore, vide order dated
12.04.2018, the notice of motion proceeded without reply of the
defendants.
12. The record indicates that the notice of motion No. 2529 of
2018 was heard by this Court on 16.11.2019 and it was kept for order
on 05.12.2019. It is the submission of the learned advocate for the
defendants that by manipulating the postal authority, the plaintiff got
endorsement as “Left” on the postal envelope and got the ex-parte order
against the defendants in notice of motion No.2529 of 2018. It is also
submitted that these defendants are residing on the same address and
the notice issued by the Court Receiver has been duly received by them.
So far as, these submissions are concerned, this Court has issued Writ of
Summons through Speed Post on the same address where the
subsequent notice issued by the Court Receiver has been received on the
same address. It means that the Writ of summons was issued on the
correct address on these defendants.
13. The record indicates that already this Court has permitted
these defendants to file their written statement on record and the ex-
parte order dated 12.12.2018 was set aside. Thereafter, the notice of
motion was separately sent through the post by the plaintiff and the
postal envelope returned with the endorsement as “Not Known” on the
same and correct address of these defendants.
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14. In the case of Medi Carriers Pvt. Ltd. Vs. Frontiago Life
Sciences Pvt. Ltd. 2016 SCC OnLine Bom 6814, the Hon’ble Bombay
High Court has observed that,
the service of the notice at the registered
office address of the respondent company which is returned with
remark “Left” also amounts to good service on the ground that the
registered address of the company continued to be the same.
15. In the present case, the similar analogy is applicable. Vide
service affidavit dated 31.01.2018, the postal envelope returned with
endorsement as “Left” and subsequently on the same address when the
attempt was made to serve the notice of motion, the envelope returned
with the endorsement as “Not Known”.
16. In the case of Ajeet Seeds Limited Vs. K. Gopala Krishnaiah
(2014) 12 SCC 685, wherein the Hon’ble Supreme Court has observed
that
“It is thus clear the Section 114 of the Evidence Act enables the
Court to presume that in the common course of the natural events, the
communication would have been delivered at the address of the
addressee. Section 27 of the General Clauses Act gives rise to a
presumption that service of notice has been effected when it is sent to
the correct address by registered post. It is not necessary to aver in the
complaint that is spite of the return of the notice unserved, it is deemed
to have been served or that the addressee is deemed to have knowledge
of the notice. Unless and until the contrary is proved by the addressee,
service of the notice is deemed to have been effected at the time at
which the letter would have been delivered in the ordinary course of
business”.
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17. From the aforesaid both the endorsement, it can be gathered
that defendants were avoiding the service purposely and as per the view
taken in Ajeet Seeds (Supra), presumption can be drawn the notice was
duly served upon the defendants. Mere by making allegations that the
plaintiff manipulated the postal authority in getting the endorsement
“Left” and “Not Known” are not sufficient. It appears that the plaintiff
has taken all the possible efforts to serve the notices upon these
defendants.
18. The defendants No. 1, 3 and 4 have relied on the following
authorities on the ground of setting aside ex-parte decree and Order VII
Rule XX of the CPC;
a) Shri. Laxman Piraji Kumbhar Vs. Smt. Rahnabai Shaikh Farid and
others 1990 Bom R. C. 129.
b) Shri. Shantaram Fatu Prabhu Desai and another Vs. Smt Harsha
Umesh Sardessai and another 1998 (3) Bom. C. R. 730.
c) Hamida Haji Haroon and Ors. Vs. Khairunnisa Haji Mohammed
and Ors. 2009 (5) ALL M R 66.
d) Natvarlal D. Sarotia Vs. Bhagwati Shiyaram Patel 2013 (4) ALL M
R 168, on the ground that the defendant was a Gujarati speaking
person and the summons was served by publication in Marathi
Newspaper. On this ground, the decree was set aside and suit
came to be restored.
e) R.K.Sharma and others etc. Vs. Ashok Nagar Welfare Association
and Co. AIR 2001 DELHI 272.
f) Meghji Kanji Patel Vs. Kundanmal Chamanlal Mehtani AIR 1968
BOMBAY 387.
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g) M/s Satish Construction Company Vs. Allahabad Bank. AIR 1999
MP 21.
h) G.S.Ram Chandran Vs. M.M. Rajadhyaksha 1984 Mh.L.J.247.
i) Gauhati University Vs. Niharlal Bhattacharjee (1995) 6 SCC 731
on the ground of limitation would run from the date of
knowledge of the decree.
19. In the present notice of motion, issue is not involved about
service of Writ of Summons but the service of notice of the notice of
motion No.2529/2018, therefore, all the aforesaid authorities cited by
the defendants No. 1, 2 and 4 are not squarely applicable to the present
case. Hence, I am of the view that the aforesaid defendants failed to
make out their case to set aside the order dated 05.12.2019 passed in
the notice of motion No.2529 of the 2018. In the result, following order
is passed:-
ORDER
1. The Notice of Motion No.160 of 2020 is hereby
dismissed.
2. No order as to Costs.
3. The Notice of Motion No.160 of 2020 is disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 24.12.2024 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03.01.2025 at 05.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 24.12.2024.
Judgment/Order signed by P.O. on 03.01.2025
Judgment/Order uploaded on 03.01.2025
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