Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010014922020
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 574 OF 2020
IN
SUMMARY SUIT NO.137 OF 2018
Mr.Sumeet Pritamdas Rewari ...Plaintiff
V/s.
1. M/s. Vertex Realtors & Ors. ...Defendants
Appearance :
Adv Ivor D’Cruz for plaintiff.
Adv Samiksha Malekar for defendant No.2.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 26/07/2022.
ORDER
The present Notice of Motion is taken out by defendants
seeking set aside of Exparte order passed by this Court by order dated
31/03/2018 and consequently to condone the delay in causing the
appearance.
2. Perused the Notice of Motion and affidavit filed in support
of it. Heard Ld Adv Ms. Samiksha for defendants. She submits that
defendants were not aware about the pendency of the present matter.
They were residing at different tenanted premises and therefore
summons was not served upon them. She further submits that
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defendants came to know about the present matter subsequently from
the plaintiff and therefore defendants rushed to this Court and filed the
present Notice of Motion. She Submits that there is no deliberate
avoidance to appear before this Court. The delay caused is not
intentional or deliberate. She further submits that in the interest of
justice, the exparte order may be set aside and defendants be permitted
to participate in the suit. She points out that at the time of granting
leave to register Notice of Motion, this Court had directed the
defendants to deposit the amount of Rs.8,000/- as condition precedent
for leave to register Notice of Motion.
3.
Per contra Ld Adv Ivor D’Cruz for the plaintiff objected the
present Notice of Motion by filing detailed reply. He submits that the
roznama of the present matter itself shows that the summons was duly
sent on the registered address of the defendants. However, same was
refused. This Court by impugned order dated 31/03/2018, had
observed the refusal and passed exparte order. He further submits that
submission of defendants above changing of address is incorrect and
not supported by any document. He further submits that in para No.4
of his reply, the plaintiff has narrated about the presence of defendant
in the Court premises on the given date. It shows that defendants were
aware of the pending proceeding, still defendants did not take proper
steps and avoided till the matter was posted for final hearing. Adv for
plaintiff submit that Notice of Motion contains false and frivolous
reasons and therefore Notice of Motion be dismissed with costs. He in
alternate, submits that if this Court comes to the conclusion to allow
the Motion, heavy cost may be imposed and same be paid to the
plaintiff.
4. Admittedly, this Court has passed an exparte order on
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31/03/2018 by observing that postal packets of summons sent to the
defendants had returned unserved with endorsement “ refused”. In view
of the said endorsement and affidavit of service filed by the plaintiff, the
contention of defendants with respect to change of address itself does
not seem to be justified. There is nothing placed on record by the
defendants to show that their registered address was ever changed.
5. From record it appears that the present suit is filed
claiming decree of Rs.71,31,000/-. It is needless to say that if the
exparte order is not set aside, it would take away the right of defendant
to contest the Summons for Judgment filed by the plaintiff. This Court
has already directed to deposit of Rs.8,000/- at the time of granting of
leave to register. Though the reasons for delay are not conveniencing,
still in the interest of justice, and to have out come of suit on merit of
the matter, I find it just and proper to set aside the exparte order passed
on 31/03/2018. However, as there is delay suffered by the plaintiff, the
reasonable cost needs to be imposed to the defendants. Hence, the
order.
ORDER
1. Notice of Motion No.574 of 2020 is hereby allowed subject to cost
of Rs.10,000/-( Rupees Ten Thousand Only).
2. Cost be paid to the plaintiff.
3. Notice of Motion No.574 of 2020 is disposed of accordingly.
Date- 26/07/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on: 26/07/2022
Transcribed on:28/07/2022
Signed on: 28/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/07/2022 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
26/07/2022
JUDGMENT/ORDER signed by P. O. on 28/07/2022
JUDGMENT/ORDER uploaded on 29/07/2022
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