Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No. 507/19 in Sum Suit No.640/17
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.507 of 2019
In
SUMMARY SUIT NO.640 OF 2017
(CNR NO. MH CC010039472017)
Geeta Manohar Ganachari ….Applicant
In the matter between
Malti Laxman Bhuwad,
Aged : 48 years, Occ : Housewife
At 608, 6th Floor,
Panchsheel C.H.S. Bldg. No. 3,
Dr. E. Moses Road, Worli Mumbai 18 ….Plaintiff
V/s.
Geeta Manohar Ganachari
Aged : 45 years, Occ : Housewife
Room No. 203, 2nd Floor,
Panchashil Society, Bldg. No. 1,
Worli Bhim Nagar,
G south Worli Mumbai – 18. ....Defendant
Appearance:
Mr. S. S. Redekar, Advocate for the Plaintiff.
Mr. Kishore Mhatre, Advocate for the defendant.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.40)
DATE : 29 th August, 2019.
ORDER
1. The applicant has brought this Notice of Motion for
setting aside order dated 27.07.2018 for condonation of the delay for
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filing reply to summons for judgment, and extension of period for
filing reply to summons for judgment.
2. It is contended by the applicant that the defendant had
entrusted the matter to advocate. He did not take appropriate
instructions from the defendant and therefore, the order dated
27.07.2018 was passed against the defendant. The defendant
attended the matter on 11.10.2018 and sought time to engage
another advocate, which was allowed by the Hon'ble Court. It is
further submitted that the defendant was unaware that the written
reply to the summons for judgment was required to have been filed
within stipulated period. According to defendant certain substantial
question required consideration and therefore, it is prayed that the
Notice of Motion may be allowed.
3. Notice of motion is strongly opposed by otherside on the
reason that there are more than one prayer are mentioned. Summons
for Judgment was duly served on defendant and no sufficient cause is
shown for grant of Notice of Motion.
4. I have heard both the learned Advocates. It has been
vehemently submitted by the learned Advocate of plaintiff that more
than one prayer are made in the Notice of Motion and therefore, it is
not maintainable. The reply dated 07.03.2017 specifically reflects
that sufficient opportunity was availed by the defendant in tendering
affidavit in reply for summons for judgment. Therefore, it is prayed
that the Notice of Motion be dismissed.
On the other hand, the learned Advocate for the defendant
strenuously submitted that the affidavit in reply of summons for
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judgment is filed on record. Since, earlier advocate for the defendant
did not take proper instructions from the defendant, the reply was
not filed within stipulated period. Therefore, it is prayed to that
Notice of Motion be made absolute.
4. Learned Advocate for the plaintiff relied in the matter of
Rentworks India Pvt. Ltd. Vs. India Infoline Ltd. in Writ Petition
No. 9999 of 2013 decided on 28th October, 2013, wherein it has
been observed that:
In Order XXXVII of Code of Civil Procedure, there is no
provision for the Trial Court setting aside its own order
refusing to grant leave to defend Summary Suit.
In that case no reply order was passed against defendant and
the Notice of Motion for setting aside the said order was allowed by
the Trial Court. However, on perusal of the said observations, Sub
Rule (7) of Rule 3 of order XXXVII is not discussed which reflects
that:
The Court or Judge 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.
Therefore, with due respect to the observations laid down
above, those are not applicable to the case in hand.
5. In the case in hand, the recitals of the affidavit in support
of Notice of Motion shows that since the instructions were not taken
by the earlier advocate, the defendant could not file the affidavit in
reply for summons for judgment within stipulated period. Record also
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shows that defendant sought time to engage another advocate and
the time was granted. However, the record shows that the delay of
approximately seven months has been caused on behalf of the
defendant and for the said delay, the plaintiff is required to be
compensated sufficiently. Therefore, in my opinion, that the
sufficient cause for not filing the reply of summons for judgment is
made out by the defendant, he is entitled for tendering affidavitin
reply which is already filed on record subject to cost of Rs.15,000/
(Fifteen Thousand only) to plaintiff within three weeks from the date
of order. Resultantly, I pass following order :
ORDER
1. Notice of Motion No.507 of 2019, is hereby allowed subject to
cost of Rs.15,000/ (Rs. Fifteen Thousand Only) to be paid
within three weeks from the date of order.
2. After depositing the costs within stipulated period as
mentioned above, the order dated 27.07.2018 is set aside and
the affidavit in reply of defendant be taken on record.
3. Accordingly, Notion of Motion No. 507 of 2019 is hereby
disposed off.
sd/
(Jayshri R. Pulate)
Adhoc Judge
City Civil Court,
Gr. Bombay
Date : 29/08/2019
Dictated on : 29.08.2019
Transcribed on : 29.08.2019
Checked on : 31.08.2019
Signed on : 03.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
09.09.2019 2.00 p.m. Mrs. Gayatri P. Acharekar
Name of the Judge H.H.J. Jayshri R. Pulate.
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 29.08.2019
Order signed by P.O. on 31.08.2019
Order uploaded on 03.09.2019
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