Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 1193/15 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 274 OF 2018
(CNR NO.MHCC010010942018)
IN
SUMMARY SUIT NO.1193 OF 2015
Shri.Sayed Aaqil Ahmed ...Plaintiff
V/s
Shri.Hindurao Dattaray Patil ...Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated :04/03/2019
Adv. Mr.M.A.Khan for plaintiff.
Adv. Mr.Prashant Kalmande for defendant.
ORDER BELOW NOTICE OF MOTION NO.274/18
1. This Notice of Motion is taken out by the defendant for
setting aside the exparte Judgment and decree passed on 22/6/2016 in
the aforesaid Summary Suit. The plaintiff has resisted to the said Notice
of Motion by filing reply on record.
2. Read the Notice of Motion and reply.
3. Heard. The learned advocate for the defendant has submitted
that the defendant is carrying on the business of supplying fish to
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NM In SC 1193/15 Oral Order 2
various vendors. On 8/12/2017 the defendant refused the summons of
the Thane Court in Execution Proceedings No. 35/2017 and thereafter
he came to know about the said exparte Judgment and decree. It is
submitted that the defendant is a layman and he does not know or
understand the English language. It is submitted that the defendant has
good case on merits and if the said exparte decree and Judgment is not
set aside serious prejudice would cause to him. Therefore, it is
requested to condone the delay in filing the Notice of Motion so also, to
set aside exparte Judgment and decree and thereby to make the Notice
of Motion absolute.
4. Per contra, the plaintiff has submitted that there is a delay of
481 days in filing the present Notice of Motion, it is not properly
explained and it is nothing but abuse of the process of law. It is
submitted that on 23/2/2016 the writ of Summons was served upon
the defendant but they did not appear in the matter. Consequently, the
exparte decree and Judgment came to be passed. It is submitted that
the defendant has not given any satisfactory explanation as to why he
did not appear in the aforesaid suit after the service of Writ of
summons. It is submitted that the present Notice of Motion is not
tenable and needs to be dismissed. Therefore, it is requested to dismiss
the Notice of Motion.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. On perusal
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NM In SC 1193/15 Oral Order 3
of the case record it appears that the plaintiff has filed the present suit for
recovery of Rs.17,40,000/ alongwith interest at the rate 24% p.a. on
principal amount of Rs.15,00,000/ from the date of filing of the suit till its
realisation. It appears that the writ of summons was served through
Bailiff upon the defendant on 23/2/2016 but the defendant did not
appear hence the suit was proceeded exparte vide order dated
7/5/2016.
6. On the next date i.e. on 16/6/2016 the plaintiff filed the
affidavit of evidence and list of documents vide Exhibit 5 and 6
respectively. It appears that on next date i.e. 22/6/2016 the exparte
judgment and decree was passed. Admittedly, the writ of summons was
duly served upon the defendant but he has not shown any reason as to
why he did not appear after the service of Writ of Summons. As per
Order 37 Rule 4 the Court can set aside the exparte decree, under
special circumstances. In the matter although the defendant could show
that he was prevented by good and sufficient reason for not entering
his appearance within 10 days from receipt of Writ of Summons, he has
failed to satisfy the Court that he has good and meritorious defence. In
the absence of special circumstance for setting aside the exparte decree
the Notice of Motion filed by the defendant needs to be dismissed as
the defendant has utterly failed to show that special circumstances exist
to set aside the decree. In the result, following order:
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: ORDER :
1. Notice of Motion no.274/18 is hereby dismissed.
2. Notice of Motion no.274/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
04/03/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 04 /03/19.
Date of Transcription : 04/03/19.
Date of signature : 08/03/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
8/3/19 2.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
4/3/19
Judgment/order signed by P.O on 8/3/19
Judgment/order uploaded on 8/3/19
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