Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010023962019 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.484 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 defendants No.2 to 4 for
setting aside the ex-parte order dated 28/03/2018 and to condone the delay to
file Vakalatnama on behalf of said defendants.
02. This Chamber Summons is taken out by the defendants
No.2 to 4 on 25/02/2019. Ld. Counsel for the plaintiff has filed say by way of
affidavit in reply to the Chamber Summons No.484 of 2019, and while
resisting it, submitted that Chamber Summons may be rejected.
-- 1 of 5 --
2 CS No. No.484/2019
in Sum Su No.1226/2017
03. It is submitted on behalf of the Ld counsel for the defendants
No. 2 to 4 that ex-parte order came to be passed against them on 28/03/2019 in
Summary Suit No. 1226/2017, as they failed to appear. It is further submitted
that they are not concerned with the defendant No. 1. Even, writ of summons
was served on the office of the defendants however, their staff did not inform
them. Further, defendants suffered loss in their business due to various
reasons. The some investors of the project lodged police complaint against
them and defendants No. 3 and 4 are behind bar and defendant No. 2 is out of
country for his medical reason. Therefore, said defendants could not give
instructions to their counsel. 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. The affidavit in support of chamber summons is filed by the
defendant No. 4 who is not authorized by defendants No. 2 & 3. 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.
-- 2 of 5 --
3 CS No. No.484/2019
in Sum Su No.1226/2017
05. Perused Chamber Summons and reply. Heard both the parties.
On perusing record, it appears that writ of summons is served to defendant No.
2 on 27/11/2017 and on defendants No. 3 and 4 on 24/11/2017. As they failed
to appear within stipulated period the order came to be passed on 28/03/2018
to proceed matter ex-parte against them. The present chamber summons is
taken out on 25/02/2019. The defendants were supposed to appear within 10
days from the date of service of writ of summons. As discussed above,
defendants No. 2 to 4 have not appeared within the stipulated period. Though
defendants have 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 defendants No. 2
to 4, defendant No. 1 is a Company however, defendants No. 2 to 4 are not
concerned with them. Further, as per the contention of the said defendants
writ of summons was received by the employee of defendant No. 1 who had
failed to inform these defendants.
06. Further, defendants No.2 to 4 came to know about filing of the
suit against them through official website of this Court. It is also contention of
the defendants No.2 to 4 that defendants No.3 & 4 are in jail and defendant
No.2 is out of country for medical reasons. Therefore, they could not inform
their counsel and appear in the matter within stipulated time. It is pertinent to
note that defendants have not filed any documents in support of their
contentions however, said facts are supported by affidavit. It is also submitted
by the defendants that defendant No.1 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 defendants No.2 to 4, 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 defendants No. 2 to 4 appears to be
-- 3 of 5 --
4 CS No. No.484/2019
in Sum Su No.1226/2017
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 defendants No.2 to 4 and to set aside ex-parte order passed
against them. If Chamber Summons is allowed no prejudice would cause to
the plaintiff. However, if Chamber Summons is not allowed, the defendants
No. 2 to 4 will suffer greater hardship. Admittedly, inconvenience caused to
the plaintiff needs to be considered by imposing costs on defendants No.2 to 4.
Therefore, it is necessary to condone the delay of 446 days to file Vakalatnama
to the defendants No. 2 to 4 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. 484 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
defendants No. 2 to 4 be taken on record.
4. Chamber Summons No. 484 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 --