Date: 28-02-2020
Business: Plaintiff absent.
Defendant absent.
Adv. Apurva Pawar for plff. Present.
Adv. Rajesh Cheda for deft. Present.
Adv. For the deft. Tendered draft N/M @ affidavit in support. Order- Leave granted to register.
Adv. For the deft. Tendered register N/M No. 915/2020 @ affidavit in support.
Matter is adjd to 11.03.2020 for reply of N/M.
Next Purpose: REPLY
Next Hearing Date: 11-03-2020
Date: 11-03-2020
Business: Both the parties and his advocate are absent.
Matter is adjd to 31.03.2020 for reply of N/M.
Next Purpose: REPLY
Next Hearing Date: 31-03-2020
Date: 31-03-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 17-04-2020
Date: 17-04-2020
Business: Due to Covid 19 Lockdown
Next Purpose: REPLY
Next Hearing Date: 06-05-2020
Date: 06-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 28-05-2020
Date: 28-05-2020
Business: Due to Covid -19 Lockdown
Next Purpose: REPLY
Next Hearing Date: 15-06-2020
Date: 28-05-2020
Business: Due to Covid-19 lockdown
Next Purpose: REPLY
Next Hearing Date: 15-06-2020
Date: 15-06-2020
Business: National Lock Down
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 16-09-2020
Date: 16-09-2020
Business: Due to Covid-19 Lockdown
Next Purpose: REPLY
Next Hearing Date: 26-11-2020
Date: 26-11-2020
Business: P.O. is on Leave.
Due to Covid-19 pandemic none appeared
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: REPLY
Next Hearing Date: 18-02-2021
Date: 18-02-2021
Business: P.O. is on leave.
Matter is adjd to 09.04.2021 for reply.
Next Purpose: REPLY
Next Hearing Date: 09-04-2021
Date: 09-04-2021
Business: Both the parties and their advocates are absent.
As per order of the Hon\''ble Principal Judge, matter sent to various court for scrutinize of commercial court.
Matter is adjd to 01.07.2021 for N/M Reply
Next Purpose: REPLY
Next Hearing Date: 01-07-2021
Date: 01-07-2021
Business: None present for plaintiff.
None present for defendant.
Due to rise in Covid cases, Adjd to 13.07.2021 for reply.
Next Purpose: REPLY
Next Hearing Date: 13-07-2021
Date: 13-07-2021
Business: HHJ is on Leave.
Next Purpose: REPLY
Next Hearing Date: 22-07-2021
Date: 22-07-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: REPLY
Next Hearing Date: 04-08-2021
Date: 04-08-2021
Business: P.O. is on leave, hence adjd to
Next Purpose: REPLY
Next Hearing Date: 17-08-2021
Date: 17-08-2021
Business: Adv. Harsha Shah for plaintiff present.
The matter is adjd for reply to N/M No.915/20 to 30.08.2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-08-2021
Date: 30-08-2021
Business: Adv. Apoorva Pawar for plaintiff present.
On oral request of Adv. For plaintiff, time for filing reply is granted.
The matter is adjd for reply to N/M to 06.09.2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 06-09-2021
Date: 06-09-2021
Business: Adv. Apurva Pawar for plaintiff present.
Adv. For plaintiff filed reply to N/M No.915/20. T.O.R.
The matter is adjd for N/M hearing to 24.09.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 24-09-2021
Date: 24-09-2021
Business: Adv. Apurva Pawar for plaintiff present.
Adv. Rajesh Chheda for deft. present.
Heard arguments of Adv. For deft. on N/M No.915/20.
K.B.
L.O. at 04.15 pm.
Adv. Harsha Shah for plaintiff present.
Heard Adv. For plaintiff on N/M No.915/20.
The matter is adjd for order on N/M No.915/20 to 29.09.2021.
Next Purpose: NM ORDERS
Next Hearing Date: 29-09-2021
Date: 29-09-2021
Business: Adv. Harsha Shah for plaintiff present.
None for deft.
ORDER BELOW N/M NO.915/2020
Heard both sides on 24.09.2021.
Defendant\''s case -
2. Defendant submits that he failed to appear on 22.08.2019 and therefore, ex-parte order came to be passed. Defendant appeared through advocate on 15.11.2019. On 12.02.2020, Court informed defendant\''s advocate regarding ex-parte order passed on 22.08.2019. Prior to that, defendant was not aware about ex-parte order dated 22.08.2019. Defendant could not contest the matter as there was wedding of son of his elder brother in December 2019. Thereafter, he lost track of the case. His father became ill. He was required to attend his father and therefore, he could not instruct his advocate for taking necessary steps for defending the suit. Settlement talks between the parties were going on. By making these submissions, defendant prayed to condone the delay in appearance before the Court by setting aside ex-parte order dated 22.08.2019.
3. Plaintiff by filing reply affidavit strongly resisted the N/M. It is submitted that defendant was served with writ of summons on 18.04.2019. Plaintiff filed service affidavit on 22.08.2019 and on the same day, Court passed order to proceed ex-parte. The reasons mentioned by defendants for condoning the delay in appearing before the Court are false. By making these submissions, plaintiff prayed to reject the N/M.
4. Ld. Counsel for defendant submits that defendant has given sufficient cause for his non-appearance before the Court within stipulated period and therefore, ex-parte order dated 22.08.2019 be set aside.
5. Ld. Counsel for plaintiff submits that defendant was served with writ of summons on 18.04.2019 and he was supposed to appear before the Court on or before 28.04.2019. There is no explanation in the affidavit submitted by defendant as to what has prevented him from appearing before the Court on or before 28.04.2019. Therefore, the delay caused in appearance cannot be condoned.
6. Considered the submissions advanced on behalf of both the sides. Record shows that writ of summons was served upon defendant on 18.04.2019. As per Order 37 Rule 3 of C.P.C., defendant was required to appear before the Court within 10 days of the service of writ of summons. But, defendant failed to appear before the Court on or before 28.04.2019. Record further shows that matter was posted on 06.06.2019 but plaintiff did not file service affidavit. Thereafter, matter was adjourned to 22.08.2019. On that day, plaintiff filed service affidavit and order to proceed suit ex-parte came to be passed. Defendant has not given any explanation in his affidavit as to what has prevented him from appearing before the Court on or before 28.04.2019. Defendant is giving explanation regarding delay in filing N/M after passing of order dated 22.08.2019.
7. It is pertinent to note that defendant claims that settlement talks were going on between the parties. Plaintiff in its reply affidavit admits that settlement talks were going on between the parties.
8. As stated above, deft. failed to give sufficient cause for his non-appearance within stipulated period. However, considering the fact that settlement talks were going on between the parties and principles of natural justice, it would be expedient to allow defendant to enter his appearance as per Order 37 Rule 3 of C.P.C. However, it cannot be ignored that delay in appearance by defendant caused delay in hearing of the suit for considerable period. Therefore, defendant is required to be saddled with costs. Hence, the following order.
ORDER
1. Ex-parte order dated 22.08.2019 is set aside and defendant is permitted to enter his appearance as per Order 37 Rule 3 of C.P.C. subject to payment of costs of Rs.10,000/- payable to plaintiff within 10 days.
2. N/M No.915/2020 is disposed of accordingly.
Nature Of Disposal: ALLOWED
Disposal Date: 29-09-2021