Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 347 OF 2018
IN
SUMMARY SUIT NO. 710 OF 2017
V.K. Industrial Corpn.Ltd. ).....Plaintiff
V/s.
Jugalkishore Didwania )...Defendant
CORAM : HIS HONOUR JUDGE
SHRI. S.J.BIYANI
(C. R. No.: 28)
DATED : 27th APRIL, 2018,
Advocate Mr. Ashok M. Saraogi for defendant
Advocate Mr. Anil Agarwal for plaintiff.
ORAL ORDER
This notice of motion is taken out by the defendant for
condoning the delay of 117 days caused for filing vakalatnama after
receiving the notice by defendant.
2. The defendant contended that he has filed vakalatnama on
24/07/2017 within a statutory time and intimation by his advocate was
given to the advocate of plaintiff vide letter dated 23/07/2017.
However, on 18/1/2018, when the matter came on board, it was
observed by the Court that no any vakalatnama has been filed by the
defendant on record. In normal course, once a vakalatnama is filed and
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intimation of same is given to the advocate for plaintiff, it is the plaintiff
to take necessary steps. Due to non having vakalatnama, the matter was
posted for exparte hearing on 7/02/2018. The defendant thought that
his advocate has filed vakalatnama and it seems that some human error
or due inadvertence, the vakalatnama has not been shown in the record
and not in roznama. Therefore, present notice of motion is filed.
3. Heard both the sides.
4. The plaintiff filed reply and objected for the notice of
motion. It is contended by the plaintiff that his advocate has received
copy of letter from the Defendant's advocate on 23/08/2017 addressed
to the Registrar, City Civil & Sessions Court, Mumbai stating that
vakalatnama on behalf of defendant is enclosed therewith. On
23/08/2017, advocate for plaintiff prepared summons for judgment
and affidavitin support thereof and affirmed on 4/09/2017. On
6/09/2017, when advocate for plaintiff filed precipe at that time Court
officer informed that no vakalatma has been filed in the court
proceedings and therefore, matter was proceeded exparte. The
defendant served the writ of summons on 14/07/2017. The defendant
in affidavit disclosed the delay of 717 days whereas in notice of motion,
he has disclosed the same as 117 days which shows that casual
approach of defendant. Therefore, plaintiff has prayed for rejection of
the notice of motion.
5. On perusal of the record, more particularly in roznama
nowhere filing of vakalatnama by defendant is disclosed. The plaintiff
admitted about receiving notice of intimation by defendant on
23/07/2017. After perusal of record, it shows that defendant has filed
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vakalatnama on 24/07/2017 but same is not reflected in the roznama.
The affidavit of service of writ of summons shows the service on
14/07/2017. Therefore, it shows that just there is one day delay caused
in filing vakalatnama and it is not intentional one. For advancing
substantial justice and deciding the matter on merit, I find that delay is
to be condoned. Hence, the following order is passed:
O R D E R
1. Notice of Motion is made absolute.
2. The delay caused for filing vakalatnama by defendant after
service of writ of summons is condoned.
3. Notice of Motion is disposed of accordingly.
(S.J.Biyani)
Judge,
Date : 27/04/2018 City Civil Court, Gr. Bombay
Dictated on : 27/04/2018
Transcribed on : 27/04/2018
Signed on : 27/04/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
2/05/2018 Mrs. V.V.Malgaonkar
TIME:12.21p.m.
Name of the Judge ( With Court
room no.) Shri S.J.Biyani
(Court Room No.28)
Date of Pronouncement of
JUDGEMENT/ORDER
27/04/2018
JUDGMENT/ORDER signed by
P.O. on
27/04/2018
JUDGEMENT/ORDER uploaded on 02/05/2018
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