Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.633 OF 2019
IN
SUMMARY SUIT NO.580 OF 2018
Jeevandeep Prakashan Private ]
Limited, a private limited company ]
incorporated under the provisions ]
of Companies Act, 1956 & carrying ]
on business at Sun Paradise ]
Business Plaza, 1st floor, ]
Senapati Bapat Marg, Lower Parel, ]
Bombay – 400 013. ] … Plaintiff
V/s.
Shree Sai English Medium School ]
(Maharshi Pratishthan's) ]
Shivganga Shilavihar,Shriram Chowk,]
Pipeline Road, Savedi, ]
Ahmednagar414 003, Maharashtra. ] … Defendant
Appearances :
Ms. Neha Kulkarni, representative of plaintiff.
Mr. B. B. Barhate, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 12th April, 2019.
MHCC01-001626-2019
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2 NM 633/19 in
Summary Suit 580/18
O R D E R
By way of this notice of motion, the defendant prayed for
setting aside the exparte judgment and order dated 25/01/2019 and
for permitting the defendant to lead evidence.
2. In supporting affidavit of Ashok Natha Kanade, the
defendant submitted that, this Court on 25/01/2019 proceeded the suit
exparte and judgment was declared thereby the plaintiff's suit for
recovery of Rs.9,77,392/ with interest came to be decreed.
3. However, the plaintiff and the defendant have settled the
dispute between themselves and on 28/01/2019, the defendant have
paid the settled amount to the plaintiff and thus, the claim is no more in
existence. In such situation, the defendant prayed that the exparte
judgment and decree dated 25/01/2019 be set aside and notice of
motion be made absolute.
4. After service of notice of motion upon the plaintiff, the
representative of plaintiff Ms. Neha Kulkarni appeared and tendered
their reply overleaf the notice of motion. They submitted that as the
amount was received by the plaintiff, they have no objection for
withdrawing the suit.
5. Heard learned Advocate Shri B. B. Barhate for the
defendant and the representative of plaintiff Neha Kulkarni. In view of
the submission of representative of the plaintiff that after decree passed
by this Court on 25/01/2019, there was settlement took place between
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Summary Suit 580/18
the parties and on 28/01/2019, the plaintiff have received the
settlement amount from the defendant, therefore, the claim is now
satisfied.
6. The order and judgment dated 25/01/2019 passed in
Summary Suit No.580 of 2018 now comes to fully sought. Hence,
questing of setting aside the same does not arise. Nor there is averment
to hold that the defendant was prevented by any sufficient cause from
appearing before Court or there is any irregularity in service of the writ
of summons. Hence, there is no ground put forth by the defendant to
the satisfaction of the Court to set aside the exparte order and
judgment dated 25/01/2019.
7. Also reason mentioned in the supporting affidavit about
suppression of true material facts about the settlement prior to
25/01/2019 also has no force, when admittedly the plaintiff received
the claim amount as per the settlement on 28/01/2019.
8. Hence, there is no merit and just and sufficient cause now
remain at this stage when the plaintiff also admitted about the receipt
of the claim amount after settlement to set aside judgment and decree
dated 25/01/2019. Hence, the notice of motion has no force and needs
to be filed due to settlement of the claimant satisfaction of the amount.
9. In such circumstances, as the judgment and decree passed
on 25/01/2019 in Summary Suit No.580 of 2018 came to be satisfied,
further claimed relief for setting aside the said judgment and decree
and permitting the defendant to lead evidence by way of this notice of
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motion now does not survive. Hence, the notice of motion deserves to
be rejected, as filed. Therefore, by directing the parties to bear their
costs, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.633 of 2019 in Summary Suit No.580
of 2018, due to satisfaction of the plaintiff's claim in view of the
settlement between the plaintiff and defendant, deserves to be rejected
and filed since claim is satisfied.
2. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Date : 12/04/2019. City Civil Court, Gr. Mumbai.
Dictated on : 12/04/2019.
Transcribed on : 12/04/2019.
Signed on :
byj/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
12.04.2019 at 5.20 p.m.
UPLOAD DATE AND TIME
(BAHUSHRUTA Y. JAMBHALE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 12/04/2019.
Judgment/order signed by P.O. on 12/04/2019.
Judgment/order uploaded on 12/04/2019.
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