Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1794/18 AND NM 376/19 IN SUM.SUIT 777/16 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1794 OF 2018
and
NOTICE OF MOTION NO.376 OF 2019
IN
SUMMARY SUIT NO. 777 of 2016
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR NO.: MHCC01-005847-2018)
(CNR NO.: MHCC01-000974-2019)
Mr. Freddy K. Bhadha ...Plaintiff
Versus
Mr. Himanshu V. Chaturvedi & Anr. ...Defendants
Appearances:-
Advocate Mr.Harish Pawar for the Plaintiff.
Advocate Mr.Vishal Singh for the Defendants
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 13th February 2020
COMMON ORDER
1. By Notice of Motion No.376 of 2019 the defendants requested to
set aside Ex-parte decree dtd.20.01.2018 as passed in Sum suit 777 of
2016. By Notice of Motion 1794 of 2018 the defendants requested to
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condone the delay caused to file the Notice of Motion for setting aside
Ex-parte decree. The plaintiff resisted both the Notice of Motions. Heard
Ld Advocates on behalf of both the parties. Perused the record.
2. The Ld advocate on behalf of the defendants argued that as the
defendants had been to their native to meet the ailing mother of
defendant No.1, as the date of the matter could not be updated in
advocates diary, the defendants could not attend the matter. Thereby,
Ex-parte decree was passed. The reasons as given by the defendants are
sufficient to condone the delay and set aside the Ex-parte decree.
Therefore, he requested to allow both the Notice of Motions.
3. On the other hand Ld advocate on behalf of the plaintiff argued
that the defendants ought to have made out special circumstance to set
aside the decree. But no such circumstance is made out. There are no
documents showing the illness of mother and visits of the defendants to
the native place. Thus, no grounds are made out to set aside the decree
and condone the delay. Therefore, he requested to reject both the notice
of motions.
4. Admittedly, writ of summons of the suit was served on the
defendants on 26.08.2016. Being summary suit the defendants were
expected to appear on or before 05.09.2016. However, the defendants
did not appear within stipulated time. The reason given for non-
appearance on or before 05.09.2016 is that the defendants had been to
their native place to see ailing mother and there was nobody in the
family to look after her, and they returned to Mumbai on 17.09.2016.
Thereafter they engaged advocate. When said advocates junior namely
Vikas Gupta went to attend the matter, the matter was already called
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out and adjourned to 07.12.2016. Though the advocate mentioned the
matter on same day, the court refused to entertain him because already
next date was given. Later on 07.12.2017 draft Notice of Motion for
condoning the delay in filing the Vakalatnama was filed. However, this
court must note that the same notice of motion though taken back by
the defendants, they did not get it registered and tendered the same
before the court so as to proceed with the same. The defendants for the
same also again contended that their advocate did not properly update
the next date in the diary and they decided to engage another advocate
but in October 2017 they had been to native place for looking after
ailing mother. Therefore, the defendants could not appear in the matter.
5. It may be noted here that the decree has been passed on
20.01.2018. The defendants filed the Notice of Motion for setting aside
the decree on 13.04.2018. Admittedly, there is delay of about 51 days to
file the Notice of Motion. The defendants do not specifically mention or
explain any reason as to why the delay of 51 days has been caused. To
be more clear neither the affidavits nor the arguments clarify as to the
reasons for delay in respect of the period in between 20.02.2018 till
12.04.2018. Thus, there being absolutely no clarification/reason as to
the delay, no question to appreciate the acceptability of the said reason/
clarification. The defendants failed to satisfy about the sufficient cause
to condone the delay.
6. Regarding the request of setting aside Ex-parte decree, the
reasons given for non-appearance before the court are that the
defendants had been to their native as mother of defendant No.1 was
ill. According to the defendants, they had been to the native in between
04.09.2016 and 17.09.2016 further in October 2017 they again went to
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the native place. The defendants did not clarify as to when they
returned to Mumbai after October 2017. The defendants did not
produce any documents to show that the mother was ill. The documents
were extremely important for the reasons of the averments in the
Chamber Summons 87 of 2019 filed by the father of defendant No.1. In
the related Chamber Summons bearing No.87 of 2019, requesting to
withdraw the attachment of property, the father of defendant No.1
stated that his wife died on 06.10.2012. It clearly suggests that the
mother of defendant No.1 died on 06.10.2012. If the mother of
defendant No.1 died on 06.10.2012, it is impossible that the defendants
could have gone to the native place in 2016 and 2017 for the reason of
ailing mother. Thus, the reason as given by the defendants is clearly
false. So far as the blame on advocate is concerned if really the
advocate was guilty or negligent the defendants would have taken
action against him for his negligence. According to the defendants
themselves, the delay for filing the vakalatnama is 583 days and for
filing the reply is 564 days. Thus, the delay is of inordinate period.
Cogent and satisfactory reasons ought to have been given to condone
the delay of such inordinate period. There is no justification regarding
non-appearance of the defendants in the suit. Resultantly, it has to be
held that no case is made out to condone the delay and set aside the
decree.
7. The Ld advocate for defendants relied on 1. G.P.Shrivastava V/s
R.K.Raizada, Special Leave Petition (Civil) 17942-43 of 1999, decided
by the Hon'ble Supreme court on 03.03.2000, 2. State of Nagaland V/s
Lipok AO, Appeal (crl.) 484 of 2005, decided by the Hon'ble Supreme
court on 01.04.2005. 3. Sushila V/s Rajeshkumar, CR 128-2016 decided
on 30.01.2017 by the Hon'ble Madhya Pradesh High Court. 4. State of
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Haryana V/s Chandra Mani, 1996 SCC (3)132.
8. I have carefully gone through the decisions in the given cases. In
the case of 'G.P. Shrivastava' the ex-parte decree was set aside on the
grounds that the defendant was posted in the irrigation and on account
of construction of bridges over the casual drains he had to remain at the
site in the interest of public and therefore, he could not appear before
the court on the date when the matter was called on for hearing.
Further, the young nephew of his advocate met with an accident due to
which the advocate could not remain present before the court on said
date. Therefore, the ex-parte decree was set aside. Thus, there were
sufficient reasons and causes for setting aside Ex-parte decree in the
said case. In the case of 'State of Nagaland' and the case of
'Chandramani', in respect of Governmental Institutions, the Hon'ble
Supreme Court observed that considerable delay of procedural red-tape
in the process of their making the decision is a common feature,
therefore, certain amount of latitude is not impermissible. In the case of
'Sushila' the ex-parte decree was set aside for the reasons that on the
relevant date the defendant was out of station and due to accident of
daughter of advocate, the advocate could not appear. Thus, having
considered the given cases it is clear that in the background of the
peculiar circumstances in the said cases the relief of setting aside Ex-
parte decree/condonation of delay was granted. However, in the case in
hand the reasons as mentioned in the notice of motion are not only
without any satisfactory material but it is apparent that the reason
regarding ailment of mother is sheer falsehood. Therefore, the decisions
as relied on are not beneficial to the defendants.
9. The plaintiff relied on TVC Skyshop V/s Reliance communication,
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(2013)6 All M.R.(SC 439). The Hon'ble Supreme Court held that in an
application under Order 37 Rule 4, the court has to determine the
question, on the facts of each case, as to whether the circumstances
pleaded are so unusual or extraordinary as to justify putting the clock
back by setting aside the decree; to grant further relief in regard to post-
decree matters, namely, staying or setting aside the execution and also
in regard to pre-decree matter viz. to give leave to the defendant to
appear to the summons and to defend the suit. It is further held that it
is not enough for the defendant to show special circumstances which
prevented him from appearing or applying for leave to defend, he has
also to show by affidavit or otherwise, facts which would entitle him
leave to defend the suit. In the case in hand, no special circumstances
are made out to set back the clock by setting aside the decree. The
defendants merely in the written notes of arguments contended that
they have good case on merits as the promissory note may be proved
illegal and that the plaintiff is in the business of money lending without
any license, the defendants have paid certain amount to the plaintiff.
However, this court must note that these are the mere and vague
contentions in the written notes of arguments without any substantive
pleadings and material. There is nothing to show that the plaintiff is
engaged in the business of money lending or that the defendants paid
certain amount so that the decree can be satisfied. Thus, the defendants
did not make out that they are entitled to leave to defend. Having
regard to all these circumstances the defendants are not entitled to the
reliefs of delay condonation and setting aside Ex-parte decree.
Resultantly, both the Notice of Motions are liable to be rejected. Hence,
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NM 1794/18 AND NM 376/19 IN SUM.SUIT 777/16 7
order as follows is passed:
ORDER
The Notice of Motions No.1794 of 2018 and
376 of 2019 are rejected.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 13/02/2020 City Civil Court,Gr. Mumbai
Dictated on : 13/02/2020
Signed on : 15/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/02/2020 at 11.20a.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 13/02/2020
Judgment/Order signed by P.O. on 15/02/2020
Judgment/Order uploaded on 20/02/2020
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