Final Order 1

Order Details: Notice of Motion
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MHCC010011242019
IN THE COURT OF
COURT 13 ASSISTANT SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by SHRI. SHANKAR GOVIND
BORLEPWAR
NOTICE OF MOTION NO.438 OF 2019
IN
SUMMONS FOR JUDGMENT NO. 267 OF 2017
IN
SUMMARY SUIT NO.960 OF 2017
Silver Arch Builders & Promoters
In the matter between
AAR Cube Enterprises LLP ...Plaintiff.
V/s.
Silver Arch Builders & Promoters ..Defendants.
Appearances:
Adv. Kalpana Shah for Plaintiff.
Adv. Mangesh Shah for Defendant.
ORAL ORDER DELIVERED ON 25/02/2021
1. Defendant took out this notice of motion for condonation
of delay in filing this motion, to take affidavit in reply of defendant to
the Summons for Judgment on record and grant unconditional leave to
defend the suit.
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2. Perused the notice of motion, affidavit in support of notice of
motion and affidavit in reply of plaintiff.
3. Heard advocate Mangesh Shah for defendant and advocate
Kalpana Shah for plaintiff.
4. Following point arise for my determination . I record my findings
thereof for the reasons mentioned below.
POINTS FINDINGS
1. Whether delay in filing notice of
motion can be condoned?
In the affirmative
2. Whether defendant can be
permitted to file reply to the
summons for judgment?
In the affirmative
3. Whether unconditional leave to
defend the suit can be granted?
In the negative
4. What order? Notice of motion is partly allowed
5. In brief, it is contention of the defendant that summons for
judgment is served on advocate for defendant on 17/11/2017. There
are various litigation pending against the defendant and against the
company’s of the defendant in which defendant is director. Therefore, it
was difficult to the defendant to give instructions within time to the
advocate for defendant to prepare reply for summons for judgment.
6. Defendant is required to file reply to the Summons for Judgment
within 10 days from the date of service of summons for judgment to the
defendant.
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7. Employee of the defendant who was looking after defendants
account left the defendant without properly handing over record and
file. Therefore, there is delay in filing reply to the Summons for
Judgment.
8. Defendant was able to retrieve all account related data and
documents only at the end of March 2018. Therefore, notice of motion
as prayed be allowed.
9. In brief, it is contention of the plaintiff that notice of motion is
not maintainable. All the adverse contents are denied. The purported
affidavit of Naresh Mehta is not properly and legally affirmed. The
reasons given for delay are not satisfactory. Therefore, notice of motion
be dismissed.
10. I have gone through the Order 37 Rule 3 Sub Rule 1 of Code of
Civil Procedure (CPC) . As per the said provisions plaintiff has to serve
the writ of summons on the defendants with a copy of plaint and
annexures thereto, and the defendant may at any time within ten day
of such service of writ of summons enter an appearance either in person
or by pleader.
11. Perused the order 37 Rule 3 Sub Rule 4 of the CPC. As per the
said provisions, if the defendant enters an appearance, plaintiff shall
thereafter serve on the defendant a summons for judgment returnable
not less than ten days.
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12. Perused Order 37 Rule 1 Sub Rule-5 of CPC. As per the said
provisions the defendant may at any time within ten days from the date
of service of such summons for judgment may apply for leave to defend
such suit.
13. Perused Order 37 Rule 1 Sub Rule 7 of the CPC. As per the said
provisions the Court may, for sufficient cause shown by the defendant,
excuse the delay of the defendant in entering an appearance or in
applying for leave to defend the suit.
14. In view of aforesaid provisions, there is delay in taking out the
notice of motion for filing reply to the summons for judgment and to
seek leave to defend the suit. According to the defendant there are
various litigations pending against the defendant and against the
company’s of the defendant in which he is director. One of his
employee left without intimating him and without handing over the
files, data and record.
15. Considering the grounds mentioned in the notice of motion, I am
of the opinion that delay can be condoned subject to payment of some
costs.
16. Defendant is seeking leave to defend in this notice of motion. But
defendant has not mentioned the grounds for leave to defend.
Therefore, at this stage, prayer for leave to defend cannot be considered
and cannot be granted. Defendant after filing reply to the summons for
judgment can be heard on the point of leave to defend the suit. Hence,
I record my findings to point No.1 and 2 in affirmative, point No.3 in
negative and point No.4 notice of motion is partly allowed. The delay in
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taking out notice of motion can be condoned subject to cost of
Rs.1000/-. Hence, I pass following order.
ORDER
Notice of Motion no. 438 of 2019 in Summary Suit no. 960 of 2017 is
partly allowed as under-
1. Delay in taking out this Notice of motion is condoned subject
to costs of Rs.1,000/-(Rs. One Thousand only).
2. Time granted till next date i.e. 22-04-2021 to deposit costs in
the Court or it be given to the plaintiff directly.
3. After compliance of payment of costs defendant is allowed
to file reply to the summons for judgment
4. Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 25/02/2021 City Civil Court, Gr. MUMBAI
Dictated on : 25/02/2021
Transcribed on : 02/03/2021
Signed on : 04/03/2021
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
05/03/2021 at 3.00p.m.
UPLOAD DATE AND TIME
(J.V.PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G. BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 25/02/2021
Judgment/order signed by P.O. on 04/03/2021
Judgment/order uploaded on 05/03/2021
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