Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010011122020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.438 OF 2020
IN
SUMMARY SUIT NO.358 OF 2017
Sunita Anand Shinde ] … Plaintiff
V/s
Rajesh Hanumanta Kunchikrve ] ... Defendant
Appearances :-
Mr. Rajesh Patil, Ld. Adv. for plaintiff.
Mr. G.C. Vishwakarma, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 8th April, 2021
ORAL ORDER
1. Defendant took out this Notice of Motion for condonation
of delay in filing reply of the Summons for Judgement No. 237 of 2019.
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2. Perused Notice of Motion, affidavit in support of Notice of
motion, additional affidavit of defendant in support of notice of motion
and hand written say filed by plaintiff overleaf the notice of motion.
3. Heard Learned advocate Rajesh Patil for plaintiff and
Learned advocate G.C. Vishwakarma for defendant.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below
Sr.
No
POINTS FINDINGS
1. Whether delay in filing reply of defendant to
the Summons for judgment can be
condoned ?
In the affirmative.
2. Whether reply of defendant to the Summons
for Judgement can be taken on record ?
In the affirmative.
3 What Order ? NM is allowed as
per final order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the defendant that defendant is
not aware on which date he received copy of the Summons for
Judgement. After going through record he came to know that he
received copy of Summons for Judgement on 15-10-2019 in his office.
He filed reply to the summons for judgment on 02-12-2019. He should
have filed reply within 10 days from the date of receipt of summons for
judgment i.e. till 25-10-2019. Therefore, delay in filing the reply to the
summons for judgment be condoned.
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6. Defendant was suffering fiver from 30-10-2019 to 31-10-
2019. He was adviced to take rest. Therefore, he chould not contact his
advocate to file reply within stipulated period. The delay is not
intentional. It be condoned.
7. In brief, it is contention of plaintiff that there is no
documentary evidence to support contentions of defendant mentioned
in affidavit in support of Notice of Motion and additional affidavit of
support of Notice of Motion.
8. Perused Summons for Judgement no. 237 of 2019. It is
registered on 03-10-2019. Perused affidavit in support of the Summons
for Judgement. Perused reply of defendant to the summons for
judgment which is attached with Summons for judgment. There is
verification clause in the reply filed to the summons for judgment. It is
dated 02-12-2019. There is endorsement overleaf the reply filed to the
summons for judgment that advocate for plaintiff received copy of the
reply on 02-12-2019.
9. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant. As per Rule 2 of
Order 37 the defendant may at any time within ten days from such
service enter an appearance either in person or by pleader and he shall
file in Court an address for services of Notice on him.
10. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
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appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
11. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
12. According to defendant copy of Summons for judgment is
received on 15-10-2019. Reply filed to the summons for judgment is
dated 02-12-2019. As per Order 37 Rule 3 Sub Rule 4 of Code of Civil
Procedure defendant did not file reply within 10 days from the date of
service of summons for judgment. There is delay in filing the reply.
Considering the grounds mentioned in the additional affidavit in
support of notice of motion regarding delay, I am of the opinion that
delay can be condoned to decide the summons for judgment on merit.
Hence, I record my findings to point no. 1 and 2 in affirmative and to
Point no.3 Notice of motion is allowed as per final order. Hence,
following order:
ORDER
Notice of Motion no. 438 of 2020 in Summary suit 358 of 2017 is
allowed as under-
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1. Delay in filing reply to the Summons for Judgement no. 237 of 2019
is hereby condoned.
2. Reply filed to the Summons for Judgement no. 237 of 2019 be read
and recorded.
3. Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 08-04-2021 City Civil Court, Gr. MUMBAI
Dictated on : 08-04-2021
Transcribed on : 08-04-2021
Checked on : 08-04-2021
Signed on : 21-04-2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.04.2021 at 02.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 08.04.2021
Judgment/order signed by P.O. on 21.04.2021
Judgment/order uploaded on 21.04.2021
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