Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010016212020
CNR NO. MHCC010016212020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.629 OF 2020
IN
SUMMARY SUIT NO.1496 OF 2017
M/s. Ledvance Private Limited ]… Petitioners
V/s.
Mr. Chetan Badani ]..Applicant/Respondents
Appearances :
Ld. Adv. Mr. Ajit Aanekar for plaintiff.
Ld.Adv. Meenal Doshi for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 6th August, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
under VII Rule XI of the Code of Civil Procedure.
2. It was submitted by the defendant that the plaintiff filed
the present suit on 20.09.2017. The defendant was served on
08.03.2018 and he appeared on 15.03.2018. Thereafter, the plaintiff
presented a draft Summons for Judgement on 24.08.2018. Therefore,
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2 NM 629/2020 in
Suit 1496/2017
the Summons for Judgement was taken out after a delay of 11 months
from the date of filing of the suit. As per the Rule 119 Sub Rule 4 of
Bombay City Civil and Sessions Court Rule, the plaintiff has to apply for
a decree within six months from the filing of the claim. The plaintiff
had not taken out Summons for Judgement within six months and
therefore, the suit be rejected under Order VII Rule XI of the Code of
Civil Procedure.
2. The plaintiff filed reply to the Notice of Motion and denied
the contention of defendant. It was submitted that as per Order 37 of
the Code of Civil Procedure no time limit has been given for taking out
Summons for Judgement. Moreover, the defendant cannot raise
defence of limitation at this stage. The Bombay City Civil and Sessions
Court Rule does not provide automatic dismissal of the suit and
therefore, the present Notice of Motion is not maintainable and hence,
it be dismissed.
3. Heard the Learned Advocate for both the parties at length.
The contents are not reproduced.
4. The plaintiff admittedly had filed a suit in the year 2017.
However, the suit was not registered due to office objections.
Ultimately, on 26.02.2016 the Summary suit was registered and
assigned to the Court. Thereafter, on 15.03.2018 the defendant
appeared and filed vakalatnama. On 24.08.2018 the plaintiff had
sought leave to register the Summons for Judgement. It therefore,
seems that after the matter was assigned to this Court the plaintiff had
taken out the Summons for Judgement on appearance of the defendant.
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Presently the matter was fixed for Summons for Judgement hearing and
the defendant had also sought leave to defend and filed reply to
Summons for Judgement and thereafter the defendant has taken out
this Notice of Motion. It seems that till date no leave to defend is
granted to the defendant. The defendant therefore cannot raise defence
of limitation without grant of leave to defend. So far as the rules under
Bombay City Civil and Sessions Court are concerned, it does not provide
for the dismissal of the suit immediately. The plaintiff herein had taken
out the Summons for Judgement after the appearance of defendant.
Earlier the matter was pending only for removal of objection and it was
only in the month of February, 2018 the matter was assigned to this
Court. It therefore, seems that there is no delay in taking out Summons
for Judgment and therefore, the plaint cannot be rejected under Order
VII Rule XI of the Code of Civil Procedure at this stage, therefore, I,
proceed to pass the following order:
ORDER
1. Notice of Motion No.629 of 2020 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 06082022 City Civil Court, Gr. MUMBAI
Dictated on : 06082022
Transcribed on : 10082022
checked on : 10082022
Signed on : 10082022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.08.2022 at 04.15 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
06.08.2022
Judgment/order signed by P.O. on 10.08.2022
Judgment/order uploaded on 10.08.2022
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