Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010012392020
Presented on : 30/01/2020
Registered on : 30/01/2020
Decided on : 19/04/2022
Duration : Y M D
02 02 20
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
NOTICE OF MOTION NO.482 OF 2020
IN
COMMERCIAL SUIT NO. 191 OF 2013
(S.C. SUIT NO.1893 OF 2013)
Shivashray Khargu Yadav
Age 50 years, Occ: Business
the sole proprietor of M/s. J.B.Enterprises,
having his office at 234, Grohitam Bldg,
Plot 14B, Sector19C, Opp. Dana Bazar,
Vashi, Navi Mumbai 400 705. ..Plaintiff
VERSUS
Sangram K.Todankar
Full name not known
Proprietor M/s.Shivam Caterers
Residing at & carrying on business at
Shree Prasanna Housing Co.Op. Society
702, 7th Floor, Off. Bhavani Shankar Road,
Opp. Swami Samarth Street,Near Kabutar
Khana, Dadar(West), Mumbai 400 028.
And (since deceased)
Keerwadi Keni Building Compound
Sakharam Keer Road
Mahim, Mumbai.
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(a). Mrs. Neelam S. Todankar
(b) Mr. Shivam S.Todankar
(c) Kum.Saloni S. Todankar
All are residing at Shree Prasanna Housing Co.Op. Society
702, 7th Floor, Off. Bhavani Shankar Road,
Opp. Swami Samarth Street,Near Kabutar
Khana, Dadar(West), Mumbai 400 028. ..Defendants
______________________________________________________
Ld. Advocate Rajesh Maravoor for plaintiff
Ld. Advocate Redekar for defendants
_____________________________________________________
ORAL ORDER
(19 th day of April 2022)
This Notice of motion is taken out by defendant No.1(a)
praying to condone the delay of 254 days in taking out present notice of
motion and further praying to set aside the judgment and decree dated
09/04/2019.
Defendant No.1(a) submits as under:
2. Commercial suit bearing No.191/2013 was filed against
her husband. Her husband Sangram contested the suit by filing written
statement. Her husband passed away on 19/02/2016. Thereafter,
plaintiff has taken out Chamber summons No.993/2016 for bringing
legal representatives of deceased on record. Legal representatives of
deceased were represented by advocate D'Silva. On 22/12/2016, Court
rejected said chamber summons. Thereafter, plaintiff has filed review
application. Said review application was allowed on 09/06/2017 and
legal representatives of deceased were taken on record. Her advocate
informed her that plaintiff will amend the plaint and legal
representatives would be again served with writ of summons.
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3. She further submits that writ of summons was not served
upon legal representatives of deceased through Court bailiff or through
Board department. After death of her husband, entire responsibility of
her family came upon her shoulders. She was required to take care of
two children and her fatherinlaw. Her fatherinlaw passed away on
23/05/2017. Her sisterinlaw passed away on 02/10/2017. Due to
sudden death of three members in the family, entire family was under
trauma and stress.
4. In the month of November 2019, plaintiff came with the
bailiff of the Court and handed over copy of warrant of attachment of
movable and immovable properties. Thereafter, she immediately
contacted her advocate. She came to know that a decree was passed by
the Court. She approached her previous advocate. Concerned advocate
has shown his inability to conduct the matter. Therefore, she was
required to take search of another advocate. Her new advocate applied
for certified copies of the documents on 10/12/2019 and got the same
on 13/12/2019. Thereafter, her advocate decided to apply for setting
aside exparte judgment and decree. However, due to Christmas
vacation, he was out of Mumbai. Defendant No.1(a) submits that she
was not served with writ of summons issued by this Court. Plaintiff
obtained exparte decree dated 09/04/2019. She was suffering from
high B.P. and diabetes. Suit is false and bogus. If decree dated
09/04/2019 is not set aside, defendants would suffer irreparable loss.
By making all these submissions, defendant No.1(a) prayed to condone
the delay of 254 days in taking out this notice of motion. She further
prayed to set aside exparte order dated 09/04/2019.
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5. Plaintiff, by filing reply affidavit, strongly resisted the
notice of motion. It is submitted that, as per order dated 09/06/2017,
plaintiff has carried out amendment on 22/06/2017. Defendant
Nos.1(a) to 1(c) were added as parties to the suit instead of original
defendant. Plaintiff served true copy of the amended plaint upon
defendant Nos.1(a) to 1(c) on 02/04/2018. On 22/06/2018, plaintiff
filed his affidavit of service containing acknowledgments of all the
defendants. Thus, defendant Nos.1(a) to 1(c) were duly served with
amended copy of the plaint. They were also served with chamber
summons before adding them as parties to the suit.
6. Plaintiff further submits that decree was passed on
09/04/2019. Applicant is giving explanation for non appearance before
the Court upto October2017. However, no explanation is given
regarding nonappearance of defendants before the Court after October
2017. Defendants ought to have filed application for setting aside
exparte decree on or before 08/05/2019. However, present
application is filed on 28/01/2020. Plaintiff has specifically denied all
the averments made in the affidavit filed alongwith notice of motion. It
is submitted that defendant Nos.1(a) to 1(c) were duly served with
copies of amended plaint and they were aware about the Court
proceedings. Defendant No.1(a) failed to explain delay in filing notice
of motion for setting aside exparte decree. Defendant No.1(a) also
failed to explain sufficient cause which prevented her from appearing
before the Court. By making all these submissions, plaintiff prayed to
dismiss the notice of motion.
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7. Ld. Counsel for defendant No.1(a) submits that original
defendantSangram Todankar appeared before the Court and filed his
written statement. Plaintiff has filed evidence affidavit on 06/01/2016.
Defendant passed away on 19/02/2016. Thereafter, plaintiff has taken
out the Chamber summons for bringing legal representatives of
deceased on record. However, said Chamber summons was dismissed
on 22/12/2016. Thereafter, plaintiff has filed Review application
which came to be allowed on 09/06/2017. Plaintiff has carried out
amendment as per order dated 09/06/2017. It was obligatory on the
part of plaintiff to serve writ of summons to defendant nos.1(a) to 1(c)
after adding them as parties to the suit. However, record shows that
defendants were not served with writ of summons. Exparte decree
came to be passed on 09/04/2019. Defendant No.1(a) came to know
about passing of this decree in November 2019. Thereafter, she had
contacted her advocate and taken steps for filing present notice of
motion.
8. Ld. counsel for defendant No.1(a) urged with vigor that
defendant No.1(a) has given sufficient cause for delay in filing present
notice of motion. So also, she has given sufficient cause which
prevented her from appearing before the Court when the suit was called
for hearing.
9. As against this, ld. Counsel for plaintiff submits that scope
of Order 9 Rule 13 of C.P.C. is very limited. Court cannot go into merits
of the case. Court has to see as to whether defendants gave sufficient
cause which prevented them from appearing before the Court when the
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suit was called for hearing. On 02/04/2018, plaintiff has duly served
copies of the amended plaint upon defendants. Plaintiff filed service
affidavit before the Court on 28/06/2018. After taking into
consideration material placed before the Court, Court passed the decree
on 09/04/2019. Record shows that defendants were knowing the dates
of the hearing and they were having sufficient time to appear and
answer the claim. Therefore, as per second proviso to Order 9 Rule 13
of C.P.C., no Court shall set aside the decree passed exparte on the
ground that there has been an irregularity in the service of summons, if
it is satisfied that defendant had notice of the date of hearing and had
sufficient time to appear and answer the plaintiff’s claim.
10. Defendant No.1(a) contends that her fatherinlaw and
sisterinlaw passed away in the year 2017. However, Court is not
concerned with the appearance of defendants in the year 2017. In the
year 2017, defendant Nos.1(a) to 1(c) appeared through the advocate
and contested the Chamber summons. Defendant Nos.1(a) to 1(c) were
served with amended copies of the plaint on 02/04/2018. They were
required to appear before the Court and contest the suit in the year
2018. On perusal of affidavit annexed with notice of motion, it is clear
that defendant No.1(a) has not made out sufficient cause which
prevented her from appearing before the Court when the matter was
called for hearing in the year 2018. Defendant No.1(a) failed to make
out the case for condoning the delay in filing notice of motion and for
setting aside an exparte decree. Therefore, present notice of motion
deserves to be dismissed.
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11. Ld. Counsel for plaintiff relied upon the case of Moti
Packaging Industries Pvt. Ltd. V/s Manish Anand, LAW(DLH)2021
12165 and submitted that if the Court inclines to set aside exparte
decree, defendants be directed to deposit suit amount. In the cited
case, order to deposit suit amount was passed with the consent of the
parties.
12. Considered the submissions advanced on behalf of both
sides. Defendant No.1(a) is praying to set aside exparte decree dated
09/04/2019. Defendant No.1(a) has filed this notice of motion as per
Order 9 Rule 13 of C.P.C. This application would be governed by
Art.123 of the Limitation Act. Art.123 of Limitation Act provides 30
days period of limitation for setting aside the decree passed exparte.
However, it has two parts. In first part, the period of limitation of 30
days would begin to run from the date of decree when summons or
notice was duly served. However, in case of second part, where the
summons/notice was not duly served, the period of limitation of 30
days would begin to run when the applicant had knowledge of the
decree.
13. Defendant No.1(a) is praying to condone the delay of 254
days. Defendant No.1(a) has calculated the delay from the date of
decree. However, Defendant No.1(a) is coming with the specific case
that defendant Nos.1(a) to 1(c) were not duly served with writ of
summons issued by this Court. Therefore, considering the averments
made in the notice of motion, the period of limitation prescribed in
second part of Art.123 of Limitation Act would be applicable.
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14. Order sheet shows that plaintiff has taken out Chamber
summons No.993/2016 for bringing on record legal representatives of
deceased defendant. Said Chamber summons was dismissed on
22/12/2016. Thereafter, matter was adjourned for steps to
27/02/2017. On 27/02/2017, advocate for plaintiff was present,
however, none appeared on behalf of defendants. Matter was
adjourned to 06/04/2017 for steps. On 06/04/2017, advocate for
plaintiff was present. No one was present on behalf of defendants and
matter was adjourned for order on Review application. On 09/06/2017,
Review application was allowed and plaintiff was directed to carry out
amendment to that effect within 14 days. Record further shows that on
22/06/2017, amendment was carried out. Matter was adjourned to
17/07/2017. On 17/07/2017, R & P could not be found and matter was
adjourned to 07/09/2017. On 07/09/2017, Court was vacant and
therefore matter was adjourned to 21/12/2017. On 21/12/2017, none
appeared before the Court and matter was adjourned for taking steps to
28/03/2018. On 28/03/2018, plaintiff's advocate was present and
matter was adjourned for steps to 28/06/2018. On 28/06/2018,
advocate for plaintiff filed service affidavit and that was taken on
record. However, matter was adjourned for steps to 26/07/2018. Thus,
ordersheet shows that matter was shown for steps from 27/02/2017 to
26/07/2018. On 26/07/2018, advocate for plaintiff was present. None
appeared on behalf of defendants and matter was adjourned for cross
examination of plaintiff. On 11/10/2018, witness was present and no
cross examination order was passed. Plaintiff filed evidence closing
pursis and thereafter, matter was adjourned to defendants’ evidence to
18/01/2019. On 18/01/2019, evidence for defendants is closed and
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matter was adjourned for arguments. Thereafter, on 13/02/2019 and
20/02/2019, matter was wrongly shown as hearing on chamber
summons.
15. Plaintiff's claim rest upon service of copies of the amended
plaint to defendant Nos.1(a) to 1(c) on 02/04/2018. However, on
perusal of order sheet, it is clear, as crystal, that after carrying out
amendment, plaintiff has not taken steps for service of writ of summons
to defendant Nos.1(a) to 1(c). Plaintiff was required to take steps for
service of summons to defendant Nos.1(a) to 1(c) as provided under
Order 22 Rule 4 of C.P.C. Form No.6 of AppendixB of C.P.C. provides
summons to legal representatives of deceased defendant. Considering
the issue involved in the suit for taking guidance, a reference with profit
can be made to para No.96(3) of Chapter 7 of the Civil Manual which
provides as under,
“(3) If the application is made within the prescribed period of
limitation, the Court shall order, without issuing previously any notice
to the proposed legal representative, that the plaint be amended by
adding the legal representative as a party to the suit in place of the
deceased defendant and that summons in form No.6 referred to above
be issued to him. It shall be open to the legal representative so added
as a party to dispute his character as a legal representative when he is
served with a summons in form No.6 referred to above, and the Court
shall decide the dispute under Rule 5 of Order XXII.”
On perusal of ordersheet, it is manifestly clear that suit summons
to defendant Nos.1(a) to 1(c) were not issued as contemplated under
Order 22 Rule 4 of C.P.C. Thus, it is a case of nonissuance of writ of
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summons and not the case of irregularity in service of summons
contemplated in second proviso to Order 9 Rule 13 of C.P.C.
16. On 28/06/2018, plaintiff filed service affidavit, however,
that service affidavit pertains to service of copies of the amended plaint
and it was not with respect to service of writ of summons. So also, after
taking on record that service affidavit, Court has not passed order to
proceed exparte against defendant Nos.1(a) to 1(c). Ordersheet
shows that matter proceeded exparte after carrying out amendment on
22/06/2017. However, no order is passed by the Court to proceed the
matter exparte against defendant Nos.1(a) to 1(c). Ordersheet further
shows that on 09/04/2019, exparte judgment came to be passed.
17. As stated above, defendant Nos.1(a) to 1(c) were not duly
served with writ of summons, therefore, second part of Art.123 of
Limitation Act would apply and period of limitation would begin to run
from the date of knowledge of the decree.
18. Defendant No.1(a) is coming with case that she came to
know about passing of decree in November 2019 when plaintiff visited
her house alongwith Court bailiff. There is no material on record to
show that prior to November 2019, defendant No.1(a) got knowledge
regarding passing of the decree. Thus, from the material placed before
the Court, it can be construed that defendant No.1(a) came to know
about passing of decree in November 2019 and she filed present notice
of motion on 18/01/2020. Defendant No.1(a) submits that after
getting knowledge of passing of decree, she contacted her previous
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advocate. However, previous advocate expressed his inability to
conduct the matter, thereafter, she approached new advocate. New
advocate applied for certified copies on 10/12/2019 and received the
copies on 13/12/2019. She further submits that due to Christmas
vacation, there was further delay in applying present notice of motion.
19. It is well settled that sufficient cause as contemplated in
Sec.5 of Limitation Act must receive a liberal construction so as to
advance substantial justice. Even though defendant No.1(a) appears
not to be vigilant, as she ought to have been, yet her conduct does not
on the whole made her as an irresponsible litigant. There appears to be
delay of about one month for taking out this notice of motion for setting
aside decree after getting knowledge of decree in November 2019.
However, from the material placed before the Court, it cannot be
inferred that that delay was deliberate or intentional.
20. Considering the facts discussed supra, delay in applying for
notice of motion, for setting aside exparte decree deserves to be
condoned. Defendant Nos.1(a) to 1(c) were not served with writ of
summons. Thus, defendant No.1(a) has shown sufficient cause which
prevented her from non appearing before the Court when the matter
was called for hearing. Therefore, exparte decree is also liable to be set
aside. However, while doing so, it cannot be ignored that suit is filed in
the year 2013. Plaintiff is claiming recovery of the amount for the
goods supplied to deceased defendant. Considering the overall facts
and circumstances on record, inconvenience caused to plaintiff on
account of absence of defendant Nos.1(a) to 1(c) requires to be
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compensated by awarding appropriate costs. In the result, following
order:
ORDER
1. Delay in taking out notice of motion is condoned subject to
payment of costs of Rs.25,000/ (Rupees Twenty Five Thousand only)
payable by defendant No.1(a) to plaintiff within four weeks from today.
2. On payment of aforesaid costs within stipulated period, exparte
decree passed in Commercial Suit No.191 of 2013 dated 09/04/2019 is
set aside.
3. Defendants are entitled to file written statement appropriate to their
character as legal representatives of deceased defendant.
4. They shall file their written statement within 30 days of date of
deposit of costs.
5. Notice of Motion No.482/2020 is disposed of accordingly.
(S. U. HAKE)
JUDGE,
Dt. 19/04/2022 CITY CIVIL COURT, GR.MUMBAI.
Dictated on : 19/04/2022
Transcribed on : 20/04/2022
Signed on : 25/04/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
25.04.2022 5.30 pm Tanushree C.Kamble
Name of the Judge HHJ Shri S.U.HAKE
(CR No.14)
Date of Pronouncement of
Judgment/Order.
19.04.2022
Judgment/order signed by P.O on 25.04.2022
Judgment/order uploaded on 25.04.2022
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