Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.906 OF 2020
(CNR NO.MHCC010024482020)
IN
SUMMARY SUIT NO. 1453 OF 2018
M/S. GIFTING IDEAS COMPANY ]
PRIVATE LIMITED. ]
A Company Incorporated under the ]
Provisions of Companies Act, 1956 ]
Having its registered office at ]
No.206, Cama Industrial Estate, ]
Sunmill Compound, Senapati Bapat ]
Marg, Lower Parel (West), ]
Mumbai400 013. ]
Through its authorized signatory. ].. Plaintiff.
V/s.
MRS. POONAM K. RAO, ]
an adult, Indian Inhabitant, ]
at present residing at B2, Jamuna ]
Darshan CHS, Bangur Nagar, ]
Goregaon (West), Mumbai–400090. ]..Defendant
Advocate Mr. Vijay Upadhyay for the Defendant.
Advocate Mrs. Leena Rajesh Temkar for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 23rd SEPTEMBER 2021
ORDER
The Notice of Motion is taken out for setting aside the
exparte judgment and decree passed against the defendant on
04/05/2021. It is also prayed that the delay caused in filing the Motion
may be condoned.
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2. It is the case of the defendant that she was employed with
plaintiff as Key Account Manager as per the letter dated 31/07/2017.
She served at the office of the plaintiff without any objections or demur.
Her service was appreciated by the plaintiff from time to time.
Defendant has further stated that in the month of October 2017, her
grandmother in law Kamlabai was sick. Hence, defendant asked for
leave to the plaintiff, but the plaintiff refused to grant any leave to the
defendant. Hence, the defendant informed the HR Department of the
Plaintiff that she wanted to resign with immediate effect. The HR
accepted the request of the defendant and informed her that she need
not worry. Mr. Suvir Khullar the Director of the Plaintiff, in fact told
defendant to seek any financial assistance if required. The grand
mother in law of defendant expired on 06/11/2017. Defendant
informed about the same to the Plaintiff. The defendant informed the
HR of the Plaintiff company that she was going to quit the job in
December 2017. No objection was raised by the HR.
3. Defendant has further stated that after the demise of the
Grandmother in law, there was nobody to look after the 3 years old
daughter of defendant. Hence, she was required to call her mother in
law from the native place. However, her motherinlaw was suffering
from diabetes and blood pressure. She got fever on 05/12/2017. The
defendant after reaching home discussed the matter with her husband.
They decided that defendant should officially resign. Accordingly,
defendant officially resigned the job on 11/12/2017. However, plaintiff
issued a letter of unauthorised absenteeism to the defendant on
20/12/2017. It was replied by the defendant on 21/12/2017 stating
that the matter was already discussed and to treat her email as formal
resignation. Defendant states that she was under impression that as per
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the oral discussion with plaintiff the formal resignation letter was not
necessary and the plaintiff did not ask for the same.
4. Defendant has further stated that her motherinlaw
ultimately had to undergo cystoscopy and urethral dilatation surgery in
October 2018 and she was admitted in the hospital for that purpose.
The motherinlaw of defendant was admitted in the hospital on
24/11/2018 for highgrade fever, severe UTI, focal hephrits in right
kidney and abscess formation. She was admitted till 03/12/2018. The
entire family was under stress and the defendant was required to take
care of her young daughter. Her motherinlaw was again admitted in
the hospital on 19/02/2019 for the complaint of low vision. She was
operated for the left eye cataract.
5. It is the case of defendant that plaintiff company habitually
files cases against its employees to harass them and extort money.
There are 12 cases filed by the plaintiff since the year 2011 with an
ulterior motive. The director of the company has an element approach
towards the employees. Therefore, the employees are forced to resign.
Plaintiff has created a false record to show that a certain sum is due to
it from the defendant.
6. Defendant has further stated that, the suit is not
maintainable as a summary suit. It is filed with suppressing material
facts and playing fraud upon the Court. Defendant has further stated
that she was unable to attend the Court after the service of writ of
summons by contacting her advocate due to her family condition. She
was not aware of the hearing of the said matter. She was engaged in
the family responsibility. One of her colleagues, who was working with
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her in the plaintiff company informed her about the order being passed
against her by this Court. She immediately applied for the certified
copies of the complete proceedings and came to know that the ex parte
decree is passed against her. She received certified copy on
03/12/2019 and thereafter sought advice from her advocate. There is
no cause of action to the suit. Defendant has made out a case for
special circumstances in the present matter for setting aside the ex parte
decree passed against her.
7. The plaintiff has filed affidavit in reply. The plaintiff has
denied all the contentions in the Notice of Motion. It is stated that,
defendant has not explained that the delay specifically. It is stated that
as per the terms of the appointment letter, if the plaintiff wants to leave
the job during probation period, she was required to give 2 months
notice in advance or to pay the salary of 2 months. The letter
constitutes a written contract between plaintiff and defendant. The
defendant is trying to defame the director of the plaintiff. For all these
reasons the plaintiff has prayed for dismissal of the notice of motion.
8. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the S.C. Suit No. 5291
of 2012.
9. Considering the Motion and reply thereto and the
documents filed on record and submissions of both learned advocates,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
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Sr.
No
POINTS FINDINGS
1 Whether the defendant had shown special
circumstances to get the ex parte decree set
aside?
In the
Affirmative
2 Whether the defendant is entitled to get the
delay caused for filing the present Notice of
Motion condoned?
In the
Affirmative
3 Whether the defendant is entitled to the
relief sought?
In the
Affirmative
4 What Order ? As per final order
R E A S O N S
AS TO POINT NO.1:
10. The basic reason on which learned advocate for defendant
assailed the exparte decree is that this is a service matter. The suit is
based on the appointment letter and that offer is accepted by the
defendant in writing. Therefore, summary suit is not maintainable.
There is no negotiable instrument involved in the matter. The defendant
is not accepting the liability and she has come with the case that
everything including the medical exigencies of her family were
explained to the director of the plaintiff and HR of the plaintiff and in
the circumstances, she had resigned with immediate effect with the
consent of plaintiff. Therefore, she is not liable to pay the 2 months
salary as claimed by the plaintiff on the basis of a term in the
appointment order.
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11. Learned advocate for plaintiff relied upon the order passed
by this Court in Chamber Summons No. 139 of 2013 in Summary Suit
No. 4361 of 2011. The order shows that it was the suit instituted by
present plaintiff against its other employee for recovery of 2 months
salary for tendering resignation. In that suit, the plaintiff itself
submitted before the Court that summary suit is not maintainable and it
needs to be converted into regular suit. Accordingly, the learned Judge
observed that the summary suit is not maintainable. The Chamber
Summons was made absolute and the registry was directed to register
the suit as regular suit. Relying upon this order, the learned advocate
for defendant submitted that the present suit is also filed by the same
plaintiff with the same prayer. The only fact is that the defendant is
different.
12. It appears from the record and the admissions of the
defendant in the notice of motion that the defendant resigned during
the probation period without giving any notice to the plaintiff as
stipulated in the appointment letter. She even did not deposit the
amount of 2 months salary with the plaintiff as per the term of the
appointment letter. Hence, the plaintiff instituted the present suit for
recovery of that 2 months salary. In view of the above, prima facie it
appears that the summary suit is not maintainable, as the dispute is
related to the service of the defendant with the plaintiff. However, this
aspect of the matter needs to be examined by giving opportunity to both
the parties. If this Court comes to the conclusion on merits that such a
suit is not maintainable in summary form, then the entire decree will be
vitiated. I have come to the conclusion that this is a sufficient special
circumstance which makes the defendant entitled for setting aside the
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exparte decree passed against her. The question goes to the root of the
matter and hence, unconditional leave to defend needs to be granted to
the defendant.
13. In the present matter, it is the case of the defendant that
due to medical exigencies she could not appear before the Court even
though the summons was duly served. She has stated that initially her
grandmotherinlaw was ill and thereafter her motherinlaw was ill.
There was nobody to take care of her child and hence, she could not
appear before the Court. She has produced on record the medical
papers from page No. 28 to page No. 55 of the compilation filed along
with the notice of motion. The discharge card is produced at page No.
46 which shows that the patient was admitted on 24/11/2018 and was
discharged on 03/12/2018. Another discharge card is at page No. 55
which shows that the patient was admitted for one day that is
19/02/2019. The present suit was instituted on 04/12/2018 and was
disposed of on 04/05/2019. The documents produced by the defendant
on record to show that the medical exigencies occurred since the
October 2018 and they were continued in the month of December and
February. Considering the fact that the defendant has made out
substantial defence in the matter, I have come to the conclusion that the
reason putforth by the defendant of the medical exigencies is sufficient
to condone the delay and to hold that she was prevented by the medical
reasons from appearing before the Court and defend the suit by seeking
necessary permissions of the Court. Before parting with the order, it is
necessary to make it clear that nothing in this order shall affect the
merits of the point of maintainability of the summary suit when it will
be restored.
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14. The learned advocate for the defendant has relied upon the
Judgment in the case of Radhakrishna Carriers Pvt. Ltd. Vs. M/s.
Pethar Automobiles reported in Writ Petition No.11145/2013
decided on 17.12.2014. It is held that;
“A reading of the provision discloses that a Defendant
who seeks setting aside of a decree has to make out
special circumstances for the same. The requirement
of Order XXXVII Rule 4 can be said to be enunciated by
the judgment of the Division Benchs of this Court in
Madhusudhan Shrikirshna's (supra) case and
Govindbhai Dayal Mange's(supra) case. It would
therefore, be opposite to refer to the said Judgments.
Insofar as Madhusudhan Shrikrishna's case (supra) is
concerned, the Division Bench has held that apart from
showing sufficient cause for not entering an
appearance and applying for leave to defend the suit, it
is also necessary for a party to apply under Order
XXXVII Rule 4 to make out the availability of a good
defence in answer to the claim putforth by the plaintiff
and that is the import of the expression “special
circumstances”. The Division Bench further observed
that a bonafide lapse on the part of the party would be
established from the facts as happened in a particular
manner in a given case to exercise power under Rule 4
of Order XXXVII. The Division Bench in Madhusudhan
Shrikrishna's case (supra) can be said to have
reiterated what has been held in Govindbhai Dahyal
Mange's (supra) case, wherein the Division Bench has
held that in order to get an exparte decree set aside
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under Order XXXVII, Rule 4 of the Civil Procedure
Code, the appellant is required to prove that he had
sufficient cause for remaining absent and is also
required to prove that he has a reasonably good
defence on merits on the basis of which the appellant
can be granted leave to defend. Hence, the Division
Benches have crystalized the requirement of Order
XXXVII Rule 4 by holding that apart from sufficient
cause, the defendant would have to prove that they
have a good defence on merits. It is in the said context
that the instant matter would have to be adjudicated.”
15. The learned advocate for the defendant has relied upon the
Judgment in the case of Samir Jasuja V/s. M/s. Assotech Realty
Private Limited decided on 21.10.2013. I have gone through the said
Judgment in the matter before the Hon'ble Lordship, the suit was
instituted for claim for damages for alleged wrongful termination of the
contract. There was contract between the plaintiff and defendant
therein and the amount of remuneration alongwith other incentives and
percentage was fixed subsequent to the contract. The claim arose out of
those calculations. In this matter claim is arising out of the appointment
order. Hence with all respect to the above ratio, I state that it is not
applicable to the present matter.
16. In view of all above discussion, I have come to the
conclusion that the defendant is entitled to unconditional leave to
defend the suit. Accordingly, the ex parte decree passed against her
needs to be set aside. I answer points Nos. 1 to 3 in the affirmative and
in answer to point No.4, proceed to pass following order.
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O R D E R
1. Notice of Motion No. 906 of 2020 is allowed.
2. The exparte decree passed in Summary Suit
No. 1453 of 2018 is set aside.
3. Summary Suit No. 1453 of 2018 is restored to
the stage of filing written statement by the
defendant.
4. Unconditional leave is granted to defendant to
defend the suit.
5. Both the parties are directed to bear their own
costs of this Notice of Motion.
6. Notice of Motion No.906 of 2020 stands disposed
of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 23.09.2021 Gr.Mumbai.
Dictated on : 23.09.2021
Typed on : 23.09.2021
Signed on : 23.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28.09.2021 AT 11.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
23/09/2021
Judgment/Order signed by P.O. on 23/09/2021
Judgment/Order uploaded on 28/09/2021
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