Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3112019 ORDER 1
MHCC010007792019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.311 OF 2019
IN
SUMMARY SUIT NO.4034 OF 2011
Ghanshyam Dayaram Katira … Plaintiff
Vs.
Smt Komal Shashi Kumar Sharma And
Anr
… Defendant
Appearances:
Ld.Adv.Mr. Vidyashankar Yadav for plaintiff.
Ld.Adv. Mr.Madan Singh Khati for defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL.
(C.R.NO.15)
DATE : 8th April 2022
ORDER
1. This Notice of Motion is filed by defendant and requested to
condone the delay of 1006 days and to stay the execution of exparte
Judgment dated 13/2/2013 in Regular Darkhast No.37/2017 pending
before CJJD, Thane.
2. Applicant/Defendants submitted that writ of summons is not
properly served to them. The Writ of Summons on record was returned
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NM No.3112019 ORDER 2
back with endorsement 'Left' and 'Unclaimed'. Said writ of summons
was issued on the business address of defendant no.2. Defendant no.1 is
serving in the school therefore, there is no any occasion for her to sit in
the business place of defendant no.2. However, defendant no.2 also
used to remain absent from the business place. He used to go out of
Bombay and the business place is looked after by servant. If he would
have received summons then certainly he would have informed the
same to defendants but this shows that writ of summons is not served
upon defendants.
3. Plaintiff/complainant has filed Criminal Case No.1889/SS/2010
before Metropolitan Magistrate Court, at Borivali under Section 138 of
the Negotiable Instruments Act. In the said matter dispute was settled
between the parties on 4/4/2016 till then the fact of Summary Suit was
not known to the defendants. The said dispute was settled for
Rs.1,00,000/. At the time of settlement terms the plaintiff disclosed
about Civil Suit consequently, the defendants were compelled to pay
additional amount for withdrawal of Summary Suit. Accordingly the
defendants have paid Rs.25,000/ by cash and therefore, in the
settlement terms the plaintiff has undertaken to withdraw Summary
Suit. Actually the Summary Suit was already decreed on 13/2/2013.
Parties have arrived at settlement in Criminal Case on 4/4/2016. At
that time the plaintiff was known about decree in the Summary Suit
even then he has not disclosed the said fact and just undertaken to
withdraw the suit. This shows that by suppressing facts the plaintiff has
obtained decree and therefore it is necessary for defendants to file the
writ of summons and to contest the suit. Accordingly defendants
requested to condone delay in filing Notice of Motion in Suit
No.4034/11 and to stay the execution of Judgment and decree.
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NM No.3112019 ORDER 3
4. Plaintiff has filed reply and opposed the Notice of Motion on the
ground of service of summons. However, it is the submission of plaintiff
that he donot know about the writing of settlement terms in the
Criminal Case. Actually the interest was yet to be recoverd from
defendants and therefore, the plaintiff is unaware about the writing
contents of settlement terms about withdrawal of Summary suit.
Accordingly plaintiff requested to dismiss Notice of Motion on the
ground of due service of summons. The plaintiff has placed reliance on
the citation of Udhav Baliram Adawale Vs.Babruwan Papanarsh
Gaikwad date of Judgment is 25/7/2017. In the citation of Hon'ble
High Court there was similar circumstances regarding service envelope
returned with remark unclaimed and intimation pasted. Hon'ble High
Court has stated that service is due service and accordingly Writ petition
of defendant to set aside exparte decree was rejected.
5. From record it appears that writ of summons was issued on
business place of defendant. Envelopes are returned with endorsement
left and unclaimed. From the Judgment citation of pliantiff it could be
said that it was due service. The defendants have also relied upon
citation of Hon'ble Bombay High Court Nagpur Bench in Rambhau
Tulsiram Bhusari Vs. Assanand Dhanumal Vensiani & Anr. 2019
ALL MR (Cri) 4730. In the said citation the Hon'ble High Court has
discussed procedure under Section 27 of the General Clauses Act.
Service of Summons is deemed to be proper service, as per citation,
service is properly addressed by registered Post can be called as due
service. Here the defendants have admitted that the summons was
addressed on the business place of defendants No.2 that can be called
as due service. On the ground of writ of summons defendants or not
entitled for setting aside exparte Judgment.
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NM No.3112019 ORDER 4
6. The next ground from the side of defendant that for the said
cause of action the plaintiff has filed the Case No.2665/SS/15 before
Metropolitan Magistrate Court, against the defendants. The said case is
compromised by writing compromise/settlement terms. The defendants
have produced copy of settlement terms. In the said settlement terms
plaintiff has admitted to withdraw present Summary suit but the said
settlement terms have written on 4/4/2016. Actually the suit was
already decreed on 13/2/2013, which means that the plaintiff has
written the settlement terms, at that time certainly the suit was not
pending in the City Civil Court. But now plaintiff has denied
handwriting contents regarding withdrawal of the suit and receipt of
cash of Rs.25,000/. The plaintiff has admitted typed contents on the
settlement terms but he has denied writing contents. This shows that
certainly there is triable issues between the parties and those needs to
be proved on merit whether the dispute was fully settled or someone
has wrongly written handwriting terms between the parties. Prima
facie, considering undertaking of the plaintiff in handwriting shows that
this act kept defendant away from appearing on record and that is
called as reasonable reason to condone the delay as sought by
defendants. Accordingly, I proceed to pass following order:
ORDER
1. Notice of Motion No.311 of 2019 is allowed.
2. Execution of decree dated 13/2/2013 is stayed and
the defendants are permitted to enter appearance
in Summary Suit no.4034/11.
3. Accordingly Summary Suit No.4034/11 is restored.
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NM No.3112019 ORDER 5
4. Notice of Motion No.311 of 2019 is disposed of.
(C.V. PATIL)
Adhoc Judge,
Date : 08/04/2022 City Civil Court, Gr. Bombay
Dictated on : 08/04/2022,
Transcribed on : 13/04/2022,
HHJ signed on : 18/04/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18/04/2022 5.45p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
11/04/2022
JUDGEMENT /ORDER signed by P.O. on 18/04/2022
JUDGEMENT /ORDER uploaded on 18/04/2022
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