Interim Order 2

Order Details: Notice of Motion
Pdf Text: Notice of motion No.1125/2020
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MHCC010031512020
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO. 1125 OF 2020
IN
SUIT NO. 3562 OF 2012 (DISPOSED OF)
(H. C. SUIT NO.1520 OF 2012)
Bhagwati Namo Nankani ...Plaintiff
Versus
Rajani J. Gulati ...Defendant
Ld. Advocate Vishwa Shah for plaintiff.
None for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.84,
O R D E R
(Delivered on 28th January, 2026)
1) By the present notice of motion under Order IX Rule 13 of
Code of Civil Procedure, defendant prayed to set aside ‘ex-parte’
judgment and decree dated 29/11/2016 in Suit No.3562 of 2012 i.e.
old High Court Summary Suit No.1520 of 2012. Defendant further
prayed to take the ‘written statement’ on record by condoning the
delay, if any. Lastly, contended that till the final disposal of present
notice of motion, Execution Application No.445 of 2017 in Summary
Suit No.3876 of 2012 be stayed.
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2) Supporting affidavit Smt. Rajani J. Gulati is tendered
contending that ex-parte judgment and decree was passed against her
on 29/11/2016. Defendant contended that she has not received
summons of the said suit. Ex-parte judgment was obtained by
suppressing material facts. She had left her address of Ghatkopar,
Mumbai in April-2014 and shifted to another address due to auction
of her flat at Ghatkopar. Therefore, she is unaware about pending
suit. She only came to know after receipt of letter dated 09/08/2014
sent by Recovery Officer of ‘Jankalyan Sahkari Bank’ for recovery
proceeding initiated against her flat at Ghatkopar. Thus, this is a valid
defence about her non-appearance.
3) Again in para 8 of her affidavit, it is contended that for the
first time, she came to know about the passing of judgment and ex-
parte decree on 12/12/2019 after receipt of WhatsApp message from
the plaintiff on her mobile phone (notice published in paper
publication). Thereafter, she tried to get and collect information of
the ex-parte decree and the suit and contacted Jankalyan Sahkari
Bank.
4) It is contended that her husband is bedridden. Therefore,
delay has occurred. Hence, prayed to set aside the ex-parte order,
judgment and decree, otherwise it would cause grave prejudice to her
rights.
5) Vide affidavit in reply dated 11/11/2021, decreeholder
No.1A/original plaintiff Namo Dayaram Nankani strongly resisted the
notice of motion denying the averments made in the affidavit. It is
contended that the suit No.3562 of 2012 was filed for recovery of
Rs.13,00,000/- with interest at the rate of 18% p.a. till its realization.
The said suit decreed subject to grant of 9% p.a. interest till
realization. The judgment debtor was duly served with the notice of
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chamber summons No.1084 of 2018 and appeared on 10/08/2018 as
per roznama and filed vakalatnama seeking time to file reply to the
chamber summons.
6) On 11/09/2018, again the learned Advocate for judgment
debtor sought time to file reply. Subsequently, Advocate of judgment
debtor filed an application on 23/01/2019 for withdrawal of his
appearance. Thus, from the very fact, it is evident that there is due
and proper knowledge about the execution application. The story of
WhatsApp message is a cock and bull story.
7) Lastly, it is contended that order passed by the Court was
served on the judgment debtor at her two known addresses by the
letter dated 08/08/2019 for compliance of the said order.
Subsequently, before notice was published in ‘Times of India’,
Mumbai/Navi Mumbai Edition of 12/11/2019, the said public notice
was communicated through WhatsApp message by Advocate Ishwar
J. Nankani, proprietor of M/s. Nankani & Associates. However,
despite the said communication there is no active participation.
Defendant intentionally and deliberately remained absent. Therefore,
notice of motion have no merits and just filed with a view to drag the
proceeding of execution application. Hence, prayed to dismiss the
notice of motion.
8) Following points arises for my determination to which I
have noted my findings with reasons thereon to each one as under :-
SR.NO. POINTS FINDINGS
1
Whether ex-parte judgment and decree
granted on 29/11/2016 in Suit No.3562 of
2012 deserve to be set aside ?
No.
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SR.NO. POINTS FINDINGS
2 What Order? Notice of
motion is
Dismissed.
R E A S O N S
9) Heard learned Advocate Vishwa Shah for
respondent/decreeholder i.e. original plaintiff. The present notice of
motion is pending since 2020, last more than 5 years. Therefore, even
if, the decreeholder did not press notice of motion to decide it, it was
on Top Priority for the Court to dispose of in accordance with the law,
in view of frequent directions by the Hon’ble High Court to give Top
Priority to the 5+ years old matter.
10) Be as it may be, I have taken up the notice of motion for
disposal in accordance with the law on merits. The fact that neither
the learned Advocate for the respondent/original defendant nor
original defendant/judgment debtor in the execution application are
present, it goes to show that they are lethargic, negligent and not
wanted to act to prosecute the notice of motion in accordance with
the law pending since last 5 years.
11) So far as, the bone of contention of defendant assuming
that the notice of motion is argued either by the learned Advocate of
the original defendant/judgment debtor, is that the flat at Ghatkopar
wherein the judgment debtor/respondent/original defendant was
residing was sold in auction. Therefore, she was forced to leave the
said flat. Therefore, when the summons were tried to serve on the
said address, she had already left the said address.
12) If Court wants to rely upon the said statement made in her
affidavit, I have perused whether any documentary evidence is
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annexed with the notice of motion so as to consider the said stand.
However, except Exhibit-A, the letter dated 09/08/2014 issued by the
Special Recovery Officer & Sales Officer Co-Op. Department, Govt. Of
Maharashtra, there is no other document so as to come to the
conclusion that the said stand taken about leaving the said address
and shifting somewhere else at new address.
13) Surprisingly in notice of motion, what is the ‘new address’
is not reflected. In the cause title of notice of motion, the address is
reflected as residing in Room No.1, Park Site Colony, Building No.24,
Vikhroli, Mumbai - 400079, Maharashtra, whereas in the suit the
address is shown as I-945 Sagar Park, Ghatkopar (West), Amrut
Nagar, Mumbai - 400 086. However, said address is her new address
and is not stated on oath, whereas in the Verification column of the
supporting affidavit of the notice of motion, her address is room
No.1, Park Site Colony, Building No.24, Vikhroli, Mumbai - 400079,
Maharashtra. Therefore, it create doubts as no documentary proof
tendered to that effect.
14) So far as the said ground, though the address is reflected
change in the notice of motion and verification clause, in supportive
affidavit is without proof of the said change of address is due to
‘public auction’. No documentary evidence about the ‘public auction’
of her old address flat has been tendered. That might be the reason,
though the notice of motion is pending since last 5 years, it is non
prosecuted for the best reason known to the judgment debtor,
otherwise, really it could have been a reason, it was a good ground
for setting aside the ex-parte judgment and decree. Thus, notice of
motion fails.
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15) Hence, I noted my findings to the Point Nos.1 and 2
accordingly and I proceed to pass following order :
ORDER
1. Notice of motion No.1125 of 2020 is dismissed with costs of
Rs.50,000/- (Rupees Fifty Thousand Only) to be paid to the
Government of Maharashtra within Four (04) weeks from the
date of passing of this order/uploading of this order..
2. The payment of costs is condition precedent.
3. If the conditions is not complied, it will be in cause.
4. Notice of motion No.1125 of 2020 is disposed of accordingly.
(Dictated, delivered and pronounced in open Court)
(SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.84,
Date : 28/01/2026 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 28/01/2026.
Transcribed on : 29/01/2026.
Signed on : 29/01/2026
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Notice of motion No.1125/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Sonali S. Naik
Name of Stenographer31/01/2026 5.30 p.m.
Name of the Judge (With C.R. No.) HHJ SHRI. SANJIV PRABHAKAR
PINGLE
(COURT ROOM NO.84)
Date of Pronouncement of
JUDGMENT / ORDER
28/01/2026
JUDGMENT / ORDER signed by P.O.
on
29/01/2026
JUDGMENT / ORDER uploaded on 31/01/2026
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