Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010011182020
CNR NO. MHCC010011182020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.435 OF 2020
IN
SUMMARY SUIT NO.1196 OF 2019
Rosalind Pereira ] … Plaintiff
V/s.
Direct Create Pvt. Ltd. ] ... Defendant
Appearances :-
Ld. Adv. Mr. Pratik Pai for plaintiff.
Ld. Adv. Mr. Amogh Karandikar for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 29th October, 2021
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for condonation of delay in filing the written statement. It was
submitted that the defendant received the summons on 17.02.2019
with directions to file the written statement. The defendant engaged an
advocate. However the Advocate informed him that he was busy and
therefore, he was required to engage another advocate. In between
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there were Court holiday. Therefore, there was delay in filing the
written statement. The delay was of five days and therefore, it be
condoned. The delay was caused due to non availability of advocate.
The defendant is having good case on merit and therefore, delay be
condoned and he be allowed to file written statement.
2. The plaintiff filed reply and strongly opposed the Notice of
Motion. It was submitted that the present suit is filed under Order 37
of the Code of Civil Procedure. The defendant was required to obtain
leave to defend the suit. However, he filed Notice of Motion seeking
condoning the delay and permission to file written statement. The
defendant has not prayed for permission to file Vakalatnama or leave to
defend and therefore, the present Notice of Motion is misconceived and
it be dismissed.
3. Heard the Learned Advocate for plaintiff.
4. The Learned Advocate for defendant failed to argue. The
Learned Advocate for plaintiff relied upon (2008), 17 Supreme Court
Cases 491 in the case of Bachhaj Nahar Vs. Nilima Mandal and Another.
It has been held that in a Civil Suit relief is to be granted only with
reference to the prayer made in the pleading.
5. After going through the contents of the Notice of Motion
filed by the defendant, it seems that the defendant is seeking the prayer
for condonation of delay in filing the written statement. As such the
suit is Summary in nature filed under Order 37 of the Code of Civil
Procedure. The defendant received summons. The defendant was
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required to file his appearance and after receiving summons for
judgment he was required to obtain leave to defend the suit. However,
the defendant misconstrued and filed an application seeking
condonation of delay in filing written statement. Therefore, the present
Notice of Motion is not maintainable at this stage. The plaintiff canot
seek any relief without filing appearance and seeking leave to defend
and therefore, I proceed to pass the following order:
ORDER
1. The Notice of Motion No.435 of 2020 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 29-10-2021 City Civil Court, Gr. MUMBAI
Dictated on : 29-10-2021
Transcribed on : 08-11-2021
checked on : 09-11-2021
Signed on : 10-11-2021
( Smt. R. K. Kshirsagar )
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”
10.11.2021 at 05.25 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of judgment/
order
29.10.2021
Judgment/order signed by P.O. on 10.11.2021
Judgment/order uploaded on 10.11.2021
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