Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.511 OF 2018
IN
S.C. SUIT NO.8185 OF 1986
(HIGH COURT SUIT NO.810 OF 1986)
The Board of Trustees of the Port of Mumbai ] … Plaintiff
V/s.
Ms. Sun Export Corporation ] ... Defendants
Appearances :
Ms. Vimal Khandare, Ld. Adv. for plaintiff.
Mr. Kumar Tolani, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 20th December, 2019
ORAL ORDER
1. Defendant has taken out this Notice of Motion to condone
delay, if any, in filing application for setting aside Exparte decree dated
19.3.2014, passed in the said suit and to permit defendant to file
written statement.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of plaintiff. Heard both sides.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
MHCC01-001991-2018
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Sr. No. POINTS FINDINGS
1. Whether there is delay in filing the
present Notice of Motion to set aside
exparte decree dated 19.03.2014
passed in the said suit? If yes, whether
delay can be condoned?
Yes. In the
affirmative.
2. Whether exparte decree dated
19.3.2014 passed in the said suit can be
set aside?
In the affirmative.
3. Whether defendant can be permitted to
file written statement in the said suit?
In the affirmative.
4 What Order ? As per final order.
REASONS
As to point Nos.1 to 4.
4. In brief, it is contention of the defendant that defendant
received copy of Notice of Execution Application No.504 of 2017 on
29.12.2017 for the first time. When defendant received copy of the
Execution Application it came to know that the said decree is passed.
Prior to that he was neither served with the copy of the decree nor he
was informed about the said notice of Execution Application. He came
to know that the said suit was initially filed before the Hon'ble Bombay
High Court. After going through the matter he found that he received
copy of the plaint from the Advocate of the plaintiff on or about in the
year 199697. He engaged Advocate Mr. C.R. Patel to represent in the
said matter. He had given instructions and relevant papers to the said
Advocate to prepare draft written statement. The said Advocate
prepared written statement and he approved and affirmed the same in
or about in the year 199798. Then Advocate informed him that
whenever the matter will be listed for the directions the written
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statement would be filed in the Court. As then Advocate also advised
him that due to pendency of the suits of earlier years the present suit
will come for hearing after quite a few years and he will inform about
listing the matter to him. Therefore, he was waiting for intimation of
listing the matter for hearing. He tried to contact his advocate. He
came to know that his advocate Mr. Patel died in or about the year
2005. He engated new Advocate and came to know that in or about the
year 2012 pursuant to raising of monetary jurisdiction of this Court,
the suits of value upto Rs.One Crore pending before the Hon'ble
Bombay High Court transferred to this Court. He had no notice of
transfer of this suit from Hon'ble Bombay High Court to this Court. He
also came to know that Exparte decree is passed against him. There is
no fault on his part to remain present in the said proceeding to defend
him.
5. It is further contention of the defendant that he has very
good case on merit to defend the suit. If the exparte decree is not set
aside then grave injustice will cause to him. He does not have complete
and proper records of the said paper and proceedings with him.
Therefore, the Notice of Motion be allowed as prayed for.
6. Plaintiff filed reply and opposed the Notice of Motion. In
brief, it is contentions of the plaintiff that all the adverse contentions
are denied. The decree is not challenged by filling appeal. The Notice
of Motion is an abuse of the process of law. The defendant has to take
out the proper proceedings against said decree and filing of this Notice
of Motion is not proper proceedings. Plaintiff is a statutory corporation
constituted under the provisions of the major Port Trusts Act, 1963.
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Despite of several notices and letters there was no response from the
defendants and the consignment had not been cleared for over two
months from the landing thereof. The plaintiff had once again called
upon the defendants by letter dated 7.11.1985 to pay the said amount
and further informed that if the said amount is not paid immediately
then legal action will be taken for its recovery. The defendant is bound
to pay the decreetal amount. There is delay in filing this Notice of
Motion. Therefore, the Notice of Motion be dismissed.
7. Admittedly, suit was filed initially before the Hon'ble
Bombay High Court. According to the defendant, he was not informed
about the transfer of suit from the Hon'ble Bombay High Court to this
Court. It is also one of his contention that his earlier Advocate died
therefore, he had to engage another Advocate.
8. As per Article 123 of the Limitation Act an application can
be filed to set aside the Exparte decree within 30 days from the date of
the decree or where the summons or notice was not duly served, when
the applicant had knowledge of the decree.
9. As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Exparte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
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the suit. Therefore, I am of the opinion that the Notice of Motion for
setting aside decree is maintainable before this Court.
10. The decree is passed on 19.3.2014. This Notice of Motion
is filed on 07.2.2018. The defendant had appeared in the said suit long
back. There is delay in filing the Notice of Motion to set aside the
decree as the defendant has not filed such Notice of Motion within 30
days from the date of the decree.
11. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisons of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
12. According to the defendant he was not aware about the
transfer of the suit from the Hon'ble Bombay High Court to this Court
and therefore, he could not attend the Court. It is also his contention
that his Advocate died in the year 2005. According to the defendant, as
mentioned in the Notice of Motion he had engaged advocate and
approved and affirmed his written statement in or about in the year
199798. If for a moment it is presumed that he was not aware about
the transfer of the suit to this Court but it was his duty to keep in touch
with the matter and to take update of the matter. Considering the
reasons mentioned in the Notice of Motion and nature of the suit I am
of the opinion that delay can be condoned by imposing some costs and
defendant can be permitted to defend himself by filing written
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statement. Defendant is aware about the proceeding in the year 1998
and then Advocate Mr. Patel died in the year 2005. The decree is
passed in the year 2014. Therefore, I am of the opinion that the cost of
Rs.20,000/ will meet the ends of justice. Hence, I record my findings
to point Nos.1 to 3 in the affirmative and point No.4 the Notice of
Motion is allowed as per final order. Hence following order:
ORDER
Notice of Motion No.511 of 2018 is allowed as under:
1. Delay in filing application to set aside Exparte decree dated
19.3.2014 is condoned subject to costs of Rs.20,000/
2. Exparte decree dated 19.3.2014 is set aside subject to payment
of the said costs.
3. Time granted till 20.1.2020 to deposit the said costs in the Court
or it be given to the plaintiff.
4. After compliance of the order of the costs, defendant is permitted
to file written statement on record.
5. Both the parties are hereby directed to remain present before the
Court on 3.2.2020 at 11.00 a.m.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 20/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 20/12/2019.
Transcribed on : 27/12/2019.
Signed on : 30/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.12.19 at 04.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 20.12.2019
Judgment/order signed by P.O. on 30.12.2019
Judgment/order uploaded on 01.01.2020
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