Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 213/2020 in Comm. Suit No. 703/21. 1 Order.
MHCC010005322020
Presented on : 14-01-2020
Registered on : 14-01-2020
Decided on : 14-10-2021
Duration : 1 years, 9 months, 0 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 213 OF 2020
IN
COMMERCIAL SUIT NO. 703 OF 2021
Navnit Radhakishan Loya ...Plaintiff
Versus
M/s. Royal Dyers and another ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 14th OCTOBER, 2021.
Shri Mahesh Devani, Advocate for the plaintiff.
Shri S.C.Gupta, Advocate for the defendants.
ORDER
1. The defendants have filed present notice of motion for
condonation of delay of 67 days in filing affidavit in reply to the
Summons for Judgment No. 236/2019 by the defendants. Perused
notice of motion and affidavit in reply. Heard learned counsel Shri
Mahesh Devani for the plaintiff and learned counsel Shri S.C.Gupta for
the defendants.
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N/m No. 213/2020 in Comm. Suit No. 703/21. 2 Order.
2. On perusal of record, it appears that Summons for
Judgment No. 236/2019 is filed on 26/09/2019. Record shows that
advocate for the defendants received copy of Summons for Judgment
on 30/09/2019 and made received signature at the backside of it. In
short, copy of Summons for Judgment is not served upon the
defendants in Form No.4A in Appendix – B. Advocate for the
defendant seems to have adopted practical approach by directly
receiving the copy of Summons for Judgment. The defendants have
placed on record their reply to Summons for Judgment on 14/12/2019.
It shows that the defendants approached the Court with reply after 65
days from the date of expiry of limitation to file reply i.e. period of ten
days from the date of service of Summons for Judgment (Order XXXVII
Rule 3(5) of the CPC). As the reply of the defendants was not taken
into account as per roznama dated 17/12/2019, the defendant moved
present notice of motion on 07/01/2020.
3. In the light of above developments in the matter, learned
counsel Shri S.C.Gupta for the defendants submitted that the defendant
had gone to U.P. to look after the mother of 86 years and there is no
necessity of explaining day to day delay as per contention of the
plaintiff.
4. On the contrary, learned counsel Shri Mahesh Devani for
the plaintiff strongly opposed the notice of motion by stating that
valuable right of getting decree has accrued in favour of the plaintiff
due to nonfiling of reply and prejudice could be caused to the plaintiff.
He further submitted that the defendant has not filed on record
documents of ailment and there is no material to substantiate grounds
to condone delay.
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N/m No. 213/2020 in Comm. Suit No. 703/21. 3 Order.
5. Order XXXVII Rule 3 (7) of the CPC authorizes the Court to
excuse the delay of the defendant in applying for leave to defend the
suit. In addition to it, the Court may set aside the decree and if
necessary stay or set aside the execution and may give leave to the
defendant to appear to the summons and to defend the suit, if it seems
reasonable to the Court so to do as per Order XXXVII Rule 4 of the CPC.
In view of all these legal provisions, delay in such contingencies can be
excused. Considering developments in the matter as enumerated in
above para 2, the defendants do not appear to be intentionally
prolonging the proceeding. It would be appropriate to hear both sides
while deciding summons for judgment. In order to redress grievance of
the plaintiff, reasonable cost may be imposed while allowing this notice
of motion. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 213/2020 is made absolute in terms
of prayer clause (a) subject to cost of Rs.3,000/ payable to
the plaintiff or his learned counsel on the next date of
hearing.
2. On payment of cost as above, reply given to Summons for
Judgment No. 236/2019 shall be taken into consideration
while deciding the same on merit.
3. N/m No. 213/2020 is disposed off.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 14/10/2021. Mumbai.
1. Dictated online on : 14/10/2021.
2. Signed on : 14/10/2021.
3. Delivered to Certified :
Copy Section on
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N/m No. 213/2020 in Comm. Suit No. 703/21. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/10/2021. 5.32 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 14/10/2021.
Judgment/Order signed by P.O. on 14/10/2021.
Judgment/Order uploaded on 14/10/2021.
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