Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.579 OF 2019
IN
S.C. SUIT NO.2488 OF 2017
M/s. Vikas Systems … Plaintiffs
V/s.
M/s. IOT Infrastructure & Energy Services
Ltd. & Ors. … Defendants
Appearances :
Ld. Adv. Sundana Kayande for plaintiff.
Ld. Adv. Purva Jarge for defendant no.1.
Ld. Adv. Tulsi for defendant no.2 to 4.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 27th AUGUST, 2019
ORDER
Defendant No.4 has taken out this notice of motion for
setting aside exparte order dated 13.06.2018 and to allow him to file
written statement on record.
2. It is argued on behalf of defendant no.4 that he is arrayed
as defendant no.4 in the suit as Engineer of defendant no.1. In fact on
20.03.2015 he has resigned from defendant no.1. Even then his suit
summons alongwith copy of plaint is served at the address of defendant
no.1. So also defendant no.1 has wrongly accepted service on behalf of
defendant no.4. As no writ of summons was served on him, no time
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will start to file the written statement. Even then Court has passed
order on 13.06.2018. He wants to put those facts before the Court.
Therefore, he may be allowed to file written statement on record.
3. It is argued on behalf of plaintiff that there was no reason
for him to know about resign of defendant no.4. As per procedure he
has sent the suit summons of defendant no.4 at the company's address.
Even company received suit summons on behalf of defendant no.4.
Defendant no.4 has knowledge of this facts. Even then he has not filed
written statement within time. He want to prolong the matter.
Therefore, application may not be allowed.
4. Here, by way of this notice of motion defendant made two
prayers, first one to set aside exparte order and second one to dismiss
the suit for want of cause of action. In my opinion both are totally
distinct and separate prayers. Those cannot be taken out by common
notice of motion. So I deal with this notice of motion for setting aside
exparte order only. Defendant no.4 is at liberty to file separate notice
of motion under order VII rule 11 of CPC.
5. It is the contention of defendant no.4 that he is no more
Engineer of defendant no.1. So he has no concern with the address of
defendant no.1. Even then his suit summons is served on that address.
If really he has resigned from defendant no.1, then it can be said that
the address of defendant no.1 is not the address of defendant no.4.
Therefore, the reason shown by defendant no.4 looks to be genuine and
proper. Moreover, matter must be decided on merit by giving full and
fair opportunity to the parties to place their case. If there is delay then
certain cost can be imposed. Therefore, I am of the opinion that
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application can be allowed by imposing certain cost. According the
order.
ORDER
1. NM No.579/19 in SU No.2488/17 is hereby allowed.
2. The exparte order dt.13.06.2019 passed against D4 is hereby set
aside on payment of cost of Rs.2,000/ to be paid to the plaintiff
on or before next date or to deposit it in the Court.
3. On compliance of cost order WS of D4 be taken on record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 27/08/2019 City Civil Court, Gr. Mumbai
Dictated on : 27.08.2019
Transcribed on : 28.08.2019
Signed on : 28.08.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
28.08.2019 04.30 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
27.08.2019.
Judgement/order signed by P.O on 28.08.2019.
Judgement/order uploaded on 28.08.2019.
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