Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.344/2018 in Summary Suit No.4609/2010
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 344 OF 2018
CNR NO.: MHCC010014072018
IN
SUMMARY SUIT NO. 4609 OF 2010
(HIGH COURT SUIT NO.2784 OF 2010)
Vinodkumar Dhanrajji Palrecha ...Plaintiff
V/s.
M/s. Rathod Textiles and others ...Defendants
Appearances:
Advocate Mr. Shetty for the plaintiff.
Advocate Ms. Sneha Agarwal for the defendants.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 18th JUNE, 2019.
ORAL ORDER
1. Defendant has contended that after filing appearance in this case,
his Advocate told him that as and when the Summons for Judgment is
served upon him, the Advocate will inform and accordingly affidavit in
reply will be required to be filed. Defendant has further stated that he
continuously followed with his Advocate and inquired whether any
summons for Judgment is served upon him and Advocate informed him
that no copy of the Summons for Judgment is served upon him and
stated that as and when the Summons for Judgment is served he will
call for giving instruction and filing reply. Defendant has further stated
that as per assurance given by Advocate, he waited for his call and he
was totally dependent upon his Advocate.
2. Plaintiff has filed reply to this Notice of Motion and opposed such
contention and stated that the entire blame has been put upon
-- 1 of 5 --
:2: N.M. No.344/2018 in Summary Suit No.4609/2010
Advocate, but defendant not bothered to pursue the matter when
defendants were aware about filing of present suit. Plaintiff has further
stated that after more than six years, when defendants served with
notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908
which clearly shows that defendants were not bothered to take steps in
the matter for six years. Plaintiff has further stated that it is not
explained if there was no call from their Advocate then why they kept
mum for more than six years and not taken steps to contest the matter.
Plaintiff has further stated that Advocate for defendant i.e. Mr. Rakesh
Jain is actively doing the practice in the Court and attending day to day
his Office and filing suits, 138 proceeding in the various Courts. Plaintiff
has further stated that the defendants failed to file affidavit of his
Advocate Mr. Rakesh Jain in support of their contention. Plaintiff has
further stated that therefore, such contention cannot be believed at all.
3. It appears from the record that though summons for judgment is
served upon Advocate for the defendant, defendant failed to file reply
and accordingly decree is passed in this suit which was filed in the year
2010. In the year 2017, it appears after execution proceedings was filed
then now defendants appeared in the year 2018 and filed this Notice of
Motion to set aside exparte decree passed against them. Considering
the contention of defendant that he was frequently calling his Advocate
to ask whether Summons for Judgment is served upon his Advocate, it
is quite unbelievable that though defendant has knowledge of the suit
and appeared in suit in 2011 still did taken steps in the suit till receipt
of Notice of execution proceeding in 2017. There is no documentary
evidence or contention of defendant that he took any steps against
concern Advocate for not informing him about service for Summons for
Judgment upon him and not filing any reply. Moreover, there is nothing
-- 2 of 5 --
:3: N.M. No.344/2018 in Summary Suit No.4609/2010
to show that defendant was exempted from appearing in the Court or
was not having responsibility of suit and take steps. Therefore, such
contention of defendant that as his Advocate did not inform him about
service of Summons for Judgment served upon him, therefore, he did
not appear and file reply does not appear believable, reasonable and
probable.
4. Defendant has contended that on receipt of the Notice under
Order XXI Rule 22 of the Code of Civil Procedure, 1908, he immediately
called his Advocate and inquired with him and his Advocate told him
that no copy of Summons for Judgment is served upon him and stated
that he is suffering from high Blood pressure, diabetic and also
angiography and was not attending the office regularly and his
Advocate told him that his staff also informed that they have also not
received any paper in the above suit from the plaintiff Advocate. To
substantiate such contention, no affidavit of the concern Advocate is
filed showing that he is not served with copy of Summons for
Judgment. In the case record there is specific copy of letter addressed
by Advocate for plaintiff to Advocate for defendant stating that
Summons for Judgment is served and there is endorsement of Advocate
for defendant receiving the same. Such document on record cannot be
disbelieved in absence of any affidavit or evidence of Advocate for
defendant that it is not his signature on such service of summons for
judgment.
5. Ld. Counsel for the defendant argued that he is acquitted from
the case field under Section 138 of Negotiable Instruments Act filed by
plaintiff against him for cheque of Rs.6,00,000/. It appears the suit was
filed by plaintiff claiming amount of Rs.2,84,626/. It appears this suit is
-- 3 of 5 --
:4: N.M. No.344/2018 in Summary Suit No.4609/2010
filed in the year 2010 claiming amount of Rs.2,84,626/ from
defendant. It appears the case under Section 138 of Negotiable
Instruments Act is disposed of in the year 2010. Merely, because
defendant is acquitted from the case filed under Section 138 of
Negotiable Instruments Act, it cannot be held that this suit is falsely
filed and decree passed is illegal. Plaintiff is entitled to get his rightful
dues as per the decree passed.
6. As discussed above, the reasons stated by defendant for not filing
reply to Summons for Judgment are not satisfactory, reasonable and
believable one. There are no reasonable grounds stated to set aside ex
parte decree. It appears the decree is passed in the year – 2013 and
Notice of Motion is filed in the year 2018 and the delay is of more than
four years in filing the present Notice of Motion. As discussed above,
reasons for such delay are not believable and satisfactory.
7. As discussed above, reasons and grounds stated by defendant for
condonation of delay and setting aside decree and order are satisfactory
and believable one. Therefore, defendant is not entitled to any relief
claimed in Notice of Motion. Hence, following order:
ORDER
Notice of Motion No.344 of 2018 stands rejected.
(S.P. AGARWAL)
Judge,
Date: 18.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 18.06.2019
Transcribed on : 18.06.2019
Signed on : 18.06.2019
-- 4 of 5 --
:5: N.M. No.344/2018 in Summary Suit No.4609/2010
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.06.2019 At 01:05 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
18.06.2019
Judgment/Order signed by P.O. on 18.06.2019
Judgment/Order uploaded on 26.06.2019
-- 5 of 5 --