Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010005062018
CNR NO. MHCC010005062018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.150 OF 2018
IN
DISPOSED OFF SUIT NO.120 OF 2014
Haresh Jain ]… Plaintiff.
V/s.
Badrinath R. ]... Defendant.
Appearances :
Ld. Adv. Mr. Kishore Jain for plaintiff.
Ld. Adv. Ms. Bhavika for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 30th June, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for setting aside the Exparte Decree and Judgment dated 20.07.2016.
2. It was submitted by the defendant that the plaintiff filed
the Summary Suit No.120 of 2014 for recovery of sum of Rs.5,30,246/
alongwith interest at the rate of 24% per annum on the principal
amount. The said suit was proceeded Exparte and was decreed.
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2 NM 150/2018 in
Suit 120/2014
3. The defendant had not received the writ of summons as per
the service affidavit dated 18.04.2016. The defendant is having a good
case on merits. The defendant came to know about the passing of Ex
parte Decree after receiving the Notice in the Execution. On 15.11.2017
the defendant came to know about the Execution proceeding and
passing of Exparte Decree. The defendant approached the Advocate
and obtained the documents and thereafter had taken out the present
Notice of Motion. It was submitted that delay was caused only for
obtaining the certified copies of the documents. The defendant is
having a good case on merits and there are several triable issues and
therefore, defendant be given an opportunity to defend himself, and
therefore, the Exparte Decree be set aside.
4. The plaintiff filed reply to the Notice of Motion and denied
the contention of defendant. It was submitted that the present Notice
of Motion is time barred and therefore, liable to be dismissed. The
plaintiff further submitted that the defendant has not stated any special
circumstances to set aside the Exparte Decree and therefore, the
present Notice of Motion is not maintainable. The defendant was duly
served with the writ of summons but he deliberately remained absent.
There is no sufficient reason mentioned in the application and
therefore, the Notice of Motion be dismissed.
5. Heard the Learned Advocate for plaintiff and defendant.
The Learned Advocate for defendant relied upon following citation:
1. 1958 BCI 37 (BOMBAY HIGH COURT)
P.N. Films Ltd. and Anr. Vs. Overseas
Films Corporation Ltd.
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3 NM 150/2018 in
Suit 120/2014
6. After going through the submissions raised by both the
parties, it seems that the plaintiff filed the suit for recovery of the
amount. Admittedly, the suit was proceeded Exparte and it was
decreed against the defendant. The defendant was directed to pay the
amount of Rs.3,04,254/ alongwith interest at the rate of 9% per
annum. The plaintiff filed the Execution proceedings and as per the
contention of defendant, the defendant came to know about this
passing of Exparte Decree only after he received the Notice in
Execution. It therefore, seems that the defendant came into the
knowledge of the passing of decree only in the year 2018. The
defendant after receiving the notice in Execution had filed the present
Notice of Motion. It therefore, seems that the defendant had mentioned
a bonafide reason for causing delay in taking out the Notice of Motion.
The defendant further prayed for setting aside the Exparte Judgment
and Decree. It seems that the defendant by way of the Exparte Decree
is directed to pay the amount. The defendant in his Notice of Motion
submitted that he had already paid excess amount. It therefore, seems
that if the Exparte Decree and Judgment is not set aside the defendant
will not get an opportunity to defend himself. Also for the fair
adjudication of the matter on merits, it would be appropriate to provide
an opportunity to the defendant. If the Exparte Decree and Judgment
is not set aside, it will be defendant who will suffer serious prejudice as
that compared to that of the plaintiff. The plaintiff had raised objection
on the maintainability of the present Notice of Motion on the ground
that the defendant ought to have sought relief as per Order 37 Rule 4 of
the Code of Civil Procedure. The defendant had relied upon ruling
citated supra. As per the observations laid down in the said the
defendant can be granted relief if his application falls under Order 37
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Suit 120/2014
Rule 4 and therefore, it seems that the defendant had shown the special
circumstances to set aside the Exparte Decree dated 30.07.2016.
Therefore, I, proceed to pass the following order:
ORDER
1. The Notice of Motion No.150 of 2018 is allowed.
2. The delay in taking out Notice of motion for setting aside ex
parte order and decree dt.20.07.2017 is condoned and judgment
and decree dt.20.07.2017 is set aside subject to cost of Rs.5000/
to be paid to the plaintiff within two months of this order.
3. After payment of cost the judgment and decree in disposed of
Suit No.120 of 2014 will be set aside.
Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 30062022 City Civil Court, Gr. MUMBAI
Dictated on : 30062022
Transcribed on : 02072022
checked on : 02072022
Signed on : 02072022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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5 NM 150/2018 in
Suit 120/2014
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.07.2022 at 04.55 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
30.06.2022
Judgment/order signed by P.O. on 02.07.2022
Judgment/order uploaded on 02.07.2022
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