Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.7842019 ORDER 1
.MHCC010020502019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.784 OF 2019
IN
SUMMARY SUIT NO.933 OF 2018
The Indian Hotels Company Ltd … Plaintiff
Vs.
Mr. Ashish Chordia And c/o Raval
Shah And Co
… Defendant
Appearances:
Ld.Adv.Ms.Shaheen Mogul i/b.Mulla & Mulla for plaintiff.
Ld.Adv.Mr.Z.K.Dalal for Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 4th April 2022
ORDER
1. This Notice of Motion is filed by defendant and requested to set
aside exparte order dated 10/12/2018 and condone delay in entering
appearance of the defendant on record. It is the submission of
defendant that settlement talks were going on between the plaintiff and
defendant from 21/8/2018. But keeping the defendant in dark the
plaintiff has filed suit on 21/8/2018. Even during that time settlement
talks were going on between the parties. There is number of letter
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NM No.7842019 ORDER 2
communication between the said period to show that settlement talks
was going on between the parties. Therefore, the defendant could not
enter within 10 days from the service of summons. Consequently,
exparte order is passed against him. Therefore, he requested to allow
him to enter his appearance on record. Said Notice of Motion is strongly
opposed from the side of plaintiff on the ground that no fruitful
proposal was coming from the defendant. However it was boundant for
plaintiff to file suit within limitation. The defendant just proposed about
settlement but no fruitful result came out. Therefore, the plaintiff has
filed suit. Both the parties have annexed relevant documents alongwith
their submission. Both the parties have made oral arguments at length.
At the time of arguments much emphasis is given from the side of
defendant to show that Writ of Summons is not duly served to
defendant. The Writ of Summons is served on the advocate of
defendant by name Raval Shah & Co. Actually the advocate was not
authorised by defendant to receive summons. The plaintiff has
produced copy of service of summons with with report to show that
Writ of Summons is served to Raval Shah & Co. The plaintiff has given
two addresses of defendant one is from Chancellor Court and other is
from Raval Shah & Co. On the ground of service of summons the
defendant has shown number of relevant provisions of the Civil
Procedure Code. Admittedly, the summons would have served on
defendants as per procedure prescribed in the Code of Civil Procedure
but in the title of suit the plaintiff has given two addresses of defendant
one is of Chancellor Court and second is of Raval Shah & Company.
Writ of summons is served on Raval Shah and Company to support the
fact that Raval Shah & Co. was dealing with plaintiff to settle the
dispute. Plaintiff as well as defendant has produced some letter
communication between the parties out of which some of the letter
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NM No.7842019 ORDER 3
communications are addressed by plaintiff to Raval Shah & CO. that is
before filing of the suit. The said fact is not denied by defendant
however, Raval Shah received summons then it was his duty to come on
record and brought into the Notice of Court that suit summons is
served on wrong person and not on defendant. But till date, the
defendant and Raval Shah kept mum. Further the present Notice of
Motion is also tendered by Raval Shah therefore, it cannot be said that
Writ of Summons was served on wrong person.
2. One of the statement of defendant that settlement talks were
going on between the parties. Therefore, defendant was unaware to
enter his appearance within limitation. Settlement talks are admitted by
plaintiff but as per case of the plaintiff, no fruitful result was coming
from defendant and plaintiff was bound to file suit within limitation.
Admittedly, the plaintiff was bound to file the suit within limitation and
settlement talks could not give extension of limitation as well as defence
of any of the ground. The plaintiff in support of submission relied upon
ratio of Bombay High Court in Victor Albuquerque Vs. Saraswat Co
operative Bank Ltd. And Others date of Judgment is 7/1/1998 Civil
Appln. No.592A of 1997 . Similar circumstances has shown in the
citation. From the said judgment, it is clear that settlement talks would
not extend time of limitation. However, it is also settled if the suit is
filed then party is not entitled for settlement talks. In the case in hand
the plaintiff has admitted settlement talks though no fruitful result
would have come from the side of defendant, but settlement talks are
admitted. On perusal of Roznama of proceedings, it appears that on
10/12/2018 exparte order is passed against defendant. On 6/2/2019
i.e. on the next date the suit was posted for arguments, on 19/2/2019
advocate for defendant tendered draft Notice of Motion that is the
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NM No.7842019 ORDER 4
present Notice of Motion. Considering date of exparte order and
appearance of defendant on record and gap before them it can be said
that because of settlement talks the defendant would not have entered
his appearance on record within time. The suit is pending from 2018
the defendant filed Notice of Motion in 2019 after two months of
exparte order for entering his appearance on record. Considering
submission on merit from the side of defendant, the time gap between
the order and the appearance, it is necessary to grant one opportunity
to him to contest the suit. But for delay he should compensate by paying
costs to the plaintiff. Accordingly Notice of Motion No. 784/19 is made
absolute in terms of Prayer caluse (a) and (b) subject to costs of
Rs.5000/ to the plaintiff. Hence, following order is passed:
ORDER
1. Notice of Motion No.784 of 2019 is made absolute
in terms of prayer clause (a) and (b) subject to costs
of Rs.5000/ to the plaintiff.
2. Notice of Motion No.784 of 2019 is disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 04/04/2022 City Civil Court, Gr. Bombay
Dictated on : 04/04/2022,
Transcribed on : 07/04/2022,
HHJ signed on : 07/04/2022
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NM No.7842019 ORDER 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
11/04/2022 4.00p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
04/04/2022
JUDGEMENT /ORDER signed by P.O. on 07/04/2022
JUDGEMENT /ORDER uploaded on 11/04/2022
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