Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010023932019 Presented on 04/03/2019
Registered on 04/03/2019
Decided on 15/02/2024
Duration 04Y: 11M: 11D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
CHAMBER SUMMONS NO.487 OF 2019
IN
SUMMARY SUIT NO. 1226 of 2017
M/s. Assured Advertising and Media Pvt. Ltd. ]...Plaintiff
V/s.
1. Unit One Inc Media Service & Ors. . ]...Defendants
Appearance:-
Ld. Advocate Mr.Hamid Syed i/b. M/s. H & M. Legal Associates for the
plaintiff.
Ld. Advocate Mr. Saurabh S. Godbole i/b. Adv. Sahil Mahajan for defendants
No.2 to 4.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 15/02/2024.
O R D E R
01. This Chamber Summons is filed by defendant No. 1 for setting
aside the ex-parte order dated 28/03/2018 and to condone the delay to file
Vakalatnama on behalf of said defendant.
02. This Chamber Summons is taken out by the defendant No. 1 on
25/02/2019. Ld. Counsel for the plaintiff has filed say by way of affidavit in
reply to the Chamber Summons No.487 of 2019, and while resisting it,
submitted that Chamber Summons may be rejected.
03. It is submitted on behalf of the Ld counsel for the defendant
-- 1 of 5 --
2 CS No. No.484/2019
in Sum Su No.1226/2017
No. 1 that ex-parte order came to be passed against it on 28/03/2019 in
Summary Suit No. 1226/2017, as they failed to appear. Even, writ of summons
for defendant No. 1 was served on wrong address and further address
mentioned in title cause is not the address of the defendant No. 1. The
defendants No. 2 to 4 are not concerned or authorized person of the defendant
No. 1 Company. When they came to know that plaintiff has filed recovery suit
against them, they have immediately taken steps to take out this chamber
summons to condone the delay of 365 days to file vakalatnama and set aside
ex-parte order passed against them. The delay is not intentional one. It has
been caused for the aforesaid reasons. Hence, it may be condoned and
Chamber Summons may be allowed, as prayed.
04. On the other hand, it is submitted on behalf of the plaintiff that
defendants were duly served with the writ of summons. They were aware
about the proceedings filed against them. However, only to prolong the matter
they had not appeared. They do not have any legitimate ground to condone
the delay. Even, no satisfactory reason given by the defendants No. 2 to 4 to
condone the delay. The delay is more than 365 days, as summons were served
on the defendants in the month of November, 2017. The plaintiff had filed his
evidence on affidavit and also filed documents which are marked as exhibits.
The matter was posted for final arguments and now defendants have taken out
this Chamber Summons to set aside ex-parte order and to condone the delay to
file vakalatnama. Therefore, there is no valid and bonafide reason to condone
the delay to set aside the ex-parte order. Hence, Chamber Summons may be
dismissed.
05. Perused Chamber Summons and reply. Heard both the parties.
On perusing record, it appears that writ of summons is served to defendant No.
1 on 24/11/2017. As it failed to appear within stipulated period the order came
to be passed on 28/03/2018 to proceed matter ex-parte against it. The present
-- 2 of 5 --
3 CS No. No.484/2019
in Sum Su No.1226/2017
chamber summons is taken out on 25/02/2019. The defendant No. 1 was
supposed to appear within 10 days from the date of service of writ of
summons. As discussed above, defendant No. 1 has not appeared within the
stipulated period. Though defendant No. 1 has contended that there is delay of
365 days however, it appears there is delay of 446 days to file vakalatnama
and 10 months delay to set aside ex-parte order dated 28/03/2018. As per the
contention of the defendant No. 1, defendants No. 2 to 4 are not concerned
with them. Further, as per the contention of the said defendant writ of
summons was served on wrong address. Therefore, they could not inform their
counsel and appear in the matter within stipulated time.
06. Further, defendant No. 1 came to know about filing of the suit
against it through official website of this Court. It is pertinent to note that
defendant No. 1 has not filed any documents in support of it contentions
however, said facts is supported by affidavit. It is also submitted by defendant
No. 1 that it is under the corporate Insolvency Resolution Process (CIRP).
Therefore, in view of Section 14 of Insolvency and Bankruptcy Code, 2016
proceeding against defendant No. 1 needs to be stayed. It is pertinent to note
that said application needs to be decided on merits therefore, said aspect need
not to be considered at this stage. Thus, from the facts and reasons given by
the defendant No. 1, I am of the view that reasons appears to be reasonable,
satisfactory and convincing. Therefore, I am of the view that the reasons given
by the defendant No. 1 appears to be reasonable, satisfactory and convincing.
Therefore, though matter is at the stage of ex-parte argument, it is necessary to
condone the delay to file the vakalatnama of the defendant No. 1 and to set
aside ex-parte order passed against it. If Chamber Summons is allowed no
prejudice would cause to the plaintiff. However, if Chamber Summons is not
allowed, the defendant No. 1 will suffer greater hardship. Admittedly,
inconvenience caused to the plaintiff needs to be considered by imposing costs
on defendant No. 1. Therefore, it is necessary to condone the delay of 446
-- 3 of 5 --
4 CS No. No.484/2019
in Sum Su No.1226/2017
days to file Vakalatnama to the defendant No. 1 on record and to set aside
ex-parte order dated 28/03/2018. Hence, I proceed to pass the following
order:-
ORDER
1. Chamber Summons No. 487 of 2019 is allowed.
2. The delay in filing the Vakalatnama is condoned and Ex-parte
order dated 28/03/2018 is set aside, subject to costs of Rs.2,000/-
(Rupees Two Thousand only) to be paid to the plaintiff within 15 days
from the date of this order.
3. After paying the costs to the plaintiff, the Vakalatnama for the
defendant No. 1 be taken on record.
4. Chamber Summons No. 487 of 2019 is disposed of accordingly.
(Sangram S.Shinde)
Adhoc Judge, City Civil Court Gr. Mumbai.
Date: 15/02/2024 Court Room No.81
Dictated on : 15/02/2024
Corrected & signed on : 15/02/2024
-- 4 of 5 --
5 CS No. No.484/2019
in Sum Su No.1226/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/02/2024 at 5.00 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/ ORDER 15/02/2024
JUDGMENT/ORDER signed by P. O. on 15/02/2024
JUDGMENT/ORDER uploaded on 15/02/2024
-- 5 of 5 --