Final Order 1

Order Details: Notice of Motion
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MHCC010014442019
IN THE COURT OF JUDGE CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.557 OF 2019
IN
SUMMARY SUIT NO.221 OF 2018
M/s. Hoo Agro Process ...Plaintiff
Versus
M/s. R.B.Dande & Associates ...Defendants
& Anr.
Appearance :
Ld. Adv. Deepak Sharma for plaintiff.
Defendants absent.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 12/08/2022.
ORDER
The present Notice of Motion is taken out by defendants
seeking setting aside of
exparte order passed by this Court on
13/08/2018 and consequently seeking permission to file written
statement.
2. Notice of Motion is filed on 16/01/2019 and is pending for
hearing since then. This Court by orders dated 06/06/2022 and
08/07/2022 had offered chance to the defendants to work out the
Notice of Motion. However, defendants and his advocate are absent
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today as well. Ld. advocate for the plaintiff points out long standing
absence of the defendants and requested this Court to take up the
matter for hearing. Accordingly the Notice of Motion is taken up for
hearing.
3. Perused Notice of Motion along with affidavit filed in its
support. Ld.advocate Sharma for plaintiff filed reply and strongly
objected the present Notice of Motion. By pointing out the roznama, he
submits that though the defendants were aware about the pendency of
the present Notice of Motion, they deliberately avoided to file Notice of
Motion for condonation of delay as per the law. Ultimately, he prays
present Notice of Motion be rejected.
4. The record reveals that defendants are duly served with the
Writ of Summons in April, 2018. The
exparte order was passed on
13/08/2018. The defendants appeared on 13/04/2018, but without
filing application for condonation of delay. Hence vakalatnama of
defendant was not taken on record. Therefore,
exparte order was
passed on 13/08/2018. It appears that on 07/12/2018, defendant had
filed adjournment application. However, same was rejected by this
Court on the ground that
exparte order was already passed and no
proper application was moved.
5. Record further reveals that the present Notice of Motion
came to be filed on 16/01/2019. By that time plaintiff had already filed
exparte evidence on 12/11/2018 and matter was kept for final
argument.
6. It is not in dispute that affidavit of service reveals that
defendants were served “ or or about 02/04/2018”. Thus, by excluding
the date of service, defendants were expected to cause appearance
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within 10 days i.e. upto 12/04/2018. However, it appears that
defendants have caused appearance on 13/04/2018. As such I find
practically there is delay of only one day.
7. Passing of
exparte order, rejection of adjournment
application etc. cannot be reason to reject present Notice of Motion. It
needs to be noted that procedure is handmaid of justice. Substantive
right to appear in suit and defend the same cannot be refused owing to
technical aspects. Therefore I find it just and proper to allow the Notice
of Motion and take appearance of defendants on record by imposing
appropriate cost for causing some delay. Hence, the order.
ORDER
1. Notice of Motion No.557/2019 is allowed subject to cost of
Rs.500/-.
2. Cost to be paid to the DLSA Mumbai, within four weeks from
date of this order.
3. On depositing the cost, the appearance of defendants be taken on
record.
4. If the defendants comply the above condition, plaintiff would be
at liberty to take appropriate steps to proceed in the matter.
5. Cost in cause.
6. Notice of Motion No.557/2019 is disposed of accordingly.
Date: 12/08/2022 (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai
Court Room No.61
Dictated on : 12/08/2022
Transcribed on: 17/08/2022
Signed on: 17/08/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17/08/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
12/08/2022
JUDGMENT/ORDER signed by P. O. on 17/08/2022
JUDGMENT/ORDER uploaded on 17/08/2022
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