Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.622/2019 in Sum. Suit No.1558/2014
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 622 OF 2019
CNR NO.: MHCC01-001614-2019
SUMMARY SUIT NO. 1558 OF 2014
Bell Finvest (India) Ltd. ...Plaintiff
Versus
Mrs. Bindu S. Mewar and another ...Defendants.
Appearances:-
Advocate Mr. Mehta for plaintiff.
Advocate Mr. Aditya Sharma for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 20th FEBRUARY, 2020.
ORAL ORDER
This is a Notice of Motion taken out by defendant No.1 praying
that delay of 947 days to make an appearance be condoned and grant
leave to defend the suit.
2. Defendant No.1 has stated that defendants were served with the
Writ of Summons on 03.08.2015. Defendant No.1 has stated that it was
out of station for business purpose therefore, it could not contact with
it lawyer in time. Defendant No.1 has further stated that there were
settlement talks initiated between defendant and plaintiff. During the
settlement talks, plaintiff gave assurance they not will proceed with the
matter and also advised defendant No.1 not to appear in the suit as the
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plaintiff was not keen in proceeding with the matter. Defendant No.1
has further stated that settlement talks went on till April, 2016 and
thereafter in June, 2016 defendant came to know that the plaintiff is
not keen on settling the matter. Defendant No.1 has further stated that
on 24.01.2018, the defendant No.1’s Advocate appeared and sought
time to take necessary steps to file application for condonation of delay
in filing appearance.
3. Defendant No.1 has further stated that though the matter was
listed on 24.01.2019, Advocate for the defendant No.1 did not appear
and file Vakalatnama. Defendant No.1 has contended that she wanted
to settle the dispute and could have filed the appearance but on the
assurance given by plaintiff, it did not file appearance. Defendant
prayed that these circumstances be considered as a special
circumstances and she should be given unconditional leave to defend
the suit and prayed to condone the delay in filing appearance.
4. Plaintiff has filed reply and stated that the Notice of Motion is
time barred. Plaintiff has further stated that defendant never approach
plaintiff for settlement talks and no false assurance given by plaintiff.
Plaintiff has further stated that defendant has not shown any sufficient
grounds for not filing appearance and prayed to reject the Notice of
Motion.
5. It appears defendant No.1 is admitted that they received Writ of
Summons in the year 2015. According to defendant, they came to know
that plaintiff is not interested in proceeding with the settlement talks in
June, 2016. Defendants have further stated that their Advocate failed to
file appearance in the suit. It appears plaintiff lead evidence and then
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defendant has now appeared.
6. In the circumstances that defendant admitted that she received
Suit Summons in the year 2015 and the fact that thereafter plaintiff
filed his evidence in the year 2019, it is probable that there were some
exchange of words for settlement. From the circumstances of the suit
and conduct of parties of parties it appears, it is probable that
defendant’s Advocate did not file appearance on 2-3 dates. Considering
these situations it appears, it will be in the interest of justice to allow
defendant to appear and give opportunity to give reply to Summons for
Judgment.
7. Advocate for the plaintiff cited judgment of Bombay High Court
(Nagpur) in case of Gaurav Singhania vs. Matrix Agri Science Pvt. Ltd.
and others reported in 2011 SCC OnLine Bom 885, in which it is held
that,
“It is well settled that Order 37 of the Civil Procedure Code is a
self contained Code, insofar as the prosecution of the summary suits are
concerned. In terms of Order 37, Rule 3(5) of the Civil Procedure Code,
a time limit is prescribed for seeking leave to defend or otherwise the
applicant is obliged to file an application for condonation of delay citing
the reasons for the delay. In the instant case none of the kind has been
done though admittedly the application for leave to defend has been
filed almost after 90 days of the summons being served upon the
respondents. The said aspect of delay has been totally glossed over by
the trial Court on the ground that in such matters a liberal view has to
be taken. The reasoning of the trial Court cannot be sustained more so
in view of the fact that the issue before the trial Court was grant of
unconditional leave in the said summary suit.” In the case in hand,
Defendant has prayed to condone delay in filing the application and she
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has stated probable and believable reasons that there were settlement
talks between parties and and it advocate failed to appear in the suit.
Therefore, facts of the cited case and in hand are different. Hence, this
case law is not applicable to the case in hand.
8. Advocate for the defendant cited judgment of the Hon’ble High
Court (Aurangabad) in case of Shivaji Shivlingappa Kadge and others
vs. Chief Officer, Municipal Council, Kannad, 2005(3) Mh.L.J., in which
it is held that, “
the primary function of a court is to adjudicate the
disputes between the contesting parties and advance substantial justice.
It is to be borne in mind that the rules of limitation are not made to
harm the valuable rights of the parties. There does not appear any
doubt that the petitioner was prevented by sufficient cause from filing
the appeal against the decree. Under such circumstances, the delay of
139 days in filing the appeal deserves to be condoned, in the interest of
justice on saddling costs on the petitioner and the petition deserves to
be allowed.” In the case in hand also defendant has made out sufficient
causes for not filing appearance. Hence, this case law is squarely
applicable to the case in hand.
9. Advocate for the defendant cited judgment of the Hon’ble Apex
Court in case of Zolba v. Keshao and Ors., AIR 2008 SC 2099, Supreme
Court, Civil Appeal No.2360 of 2008 (arising out of SLP ( C) No.20062
of 2006), D/-1-4-2008, in which it is held that,
“it would be open to the
court to permit the appellant to file his written statement if exceptional
circumstances have been made out. It cannot also be forgotten that, in
an adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation.
Therefore, unless compelled by express and specific language of the
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statute, the provisions of Order 8, Rule 1 of CPC or any procedural
enactment should not be construed in a manner, which would leave the
court helpless to meet extraordinary situations in the ends of justice.”
In the case in hand also defendant has stated reasons which appears
believable, which prevented it from filing appearance in the suit.
Therefore, to meet an ends of justice, it will be proper to allow
defendant to appear in the suit.
10. Advocate for the defendant cited judgment of the Hon’ble Apex
Court in case of Raj Kishore Pandey vs. State of U.P. & Ors., Civil Appeal
Nos. 450-452 of 2009 (Arising out of SLP ( C) Nos. 5332 – 34 of 2008),
in which it is held that,
“whether the applicant has made out sufficient
cause or not, in the application filed, the court is required to look at all
the facts pleaded in the application. No doubt, the consideration of the
existence of sufficient cause is the discretionary power with the court,
but such discretion has to be exercised on sound principles and not on
mere technicalities. The approach of the court in such matters should
be to advance the cause of justice and not the cause of technicalities. A
case as far as possible should be decided on merits and the party should
not be deprived to get the examined on the merits.” In the case in hand
also defendant appeared in the matter and as per the procedure in
Summary Suit, it will be proper to allow it to file the appearance.
11. As discussed above, it appears defendant No.1 has stated
sufficient cause for not appearing in the matter that there were
settlement talks between the parties and their Advocate failed to appear
on their behalf. Definitely settlement talks is not technically a bar to
appear in the matter. It appears to be a one of the causes which
prevented it from appearing in the matter. But considering the
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circumstances that even after knowing that plaintiff is keen with
proceeding with the matter, defendant has failed to appear in the matter
for considerable time and that according to defendant, it is their
advocates’ fault, definitely for advocate fault, defendant should not
suffer, and at the same time for the delay caused due to defendant side,
plaintiff needs to be compensated, it will be proper to allow defendant
to appear in the matter subject to cost. Definitely, after defendant
appearance is allowed and plaintiff file the application for Summons for
Judgment then only the question as to whether leave to defend to be
given to defendant or not can be considered and therefore, such prayer
cannot be considered in this application at this stage. Hence, following
order:-
ORDER
1. Notice of Motion No.622 of 2019 is partly allowed.
2. Defendant No.1 is allowed to appear in the matter subject to cost
of Rs.10,000/- to be given to plaintiff by defendant No.1.
3. Notice of Motion No.622 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 20.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 20.02.2020
Transcribed on : 20.02.2020
Signed on : 20.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.02.2020 At 4:26 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
20.02.2020
Judgment/Order signed by P.O. on 20.02.2020
Judgment/Order uploaded on 25.02.2020
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