Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 455/21 in Comm. Suit No. 418/2020. 1 Order.
MHCC010014532021
Presented on : 15-02-2021
Registered on : 15-02-2021
Decided on : 22-02-2021
Duration : 0 years, 0 months, 7 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 455 OF 2021
IN
COMMERCIAL SUIT NO. 418 OF 2020
Mr. Ram B Raheja ...Plaintiff
Versus
Arun Jasvantrai Katakai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 22nd FEBRUARY, 2021.
Mr. Rizvi, Advocate for Plaintiff.
Mr. Mitesh Jain a/w Jugal Haria, Advocate for Defendant.
ORDER
1. This is a motion submitted by a defendant to set aside
order of ex-parte dated 18.01.2021. Perused reply submitted by
plaintiff.
2. Learned adv. Mr. Mitesh Jain for deft. submits that title of
the suit is suit under order 37 rule 2 of the CPC. In view of order 37
rule 3 of the CPC defendant may submit appearance within 10 days
from the date of service of summons. Accordingly, defendant has
submitted appearance before this court by filling precipe on
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N/m No. 455/21 in Comm. Suit No. 418/2020. 2 Order.
21.01.2021. It is prayed to set aside the order dated 18.01.2021 and
opportunity to contest the suit may be granted.
3. Learned advocate Mr. Rizvi for plaintiff submits that on
perusal of entire affidavit in support of motion, defendant has obtained
the shelter of rule 3 of order 37 the CPC. However, no any reason nor
sufficient cause is mentioned by the deft. for failure to remain present
on the fixed date i.e. 18.01.2021. It is requested to reject the motion.
4. On perusal of roznama, it is not disputed that ex-parte
order has been issued in roznama dated 18.01.2021; defendant has
submitted appearance vide Exh.3 by filling V/P and service affidavit of
bailiff preferred before the court on 18.01.2021.
5. On perusal of title of the suit it is submitted by the plaintiff
under order 37 rule 2 of the CPC. Considering nature of the
transaction, it is titled as commercial suit. At the time of tendering
registered motion plaintiff has also filed summons for judgment. The
possibility can not ruled out that plaintiff may insist to adopt the
procedure of summary suit. Admittedly, no any justification is given by
the plaintiff in failure to mention appearance on fixed date i.e.
18.01.2021. However at the same time, it is pertinent to note that
defendant has marked appearance by taking the file on board vide
Exh.3 on 21.01.2021. It shows attention of the plaintiff and readiness
to conduct the hearing.
6. From the record there is a delay of the three days in
mentioning the matter from the date of appearance. However, there
was justification for plaintiff to submit appearance within 10 days in
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N/m No. 455/21 in Comm. Suit No. 418/2020. 3 Order.
view of rule 3 of order 37. Ultimate question is what prejudice would
cause to the plaintiff by providing opportunity to mark appearance and
decide the suit on merit. In my considered opinion, it would be
appropriate to set aside the order dtd. 18.01.2021. In result, motion is
allowed in view of following order.
- ORDER -
1. NM no. 455/21 is made absolute. The order dtd.
18.01.2021 is set aside subject to cost of Rs. 500/- (Rupees
Five Hundred Only) be paid to plaintiff on or before next
date.
2. Defendant to submit W.S. positively on next date.
3. NM no. 455/2021 is disposed of accordingly.
(G.G.BHANSALI)
Judge, City Civil & Sessions Court,
Date : 22/02/2021. Mumbai.
1. Dictated on : 22/02/2021.
2. Transcribed on : 22/02/2021.
3. Signed on : 25/02/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
25/02/2021. 5.44 p.m. Mrs. H.D. Parab
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 22/02/2021.
Judgment/Order signed by P.O. on 25/02/2021.
Judgment/Order uploaded on 25/02/2021.
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