Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.914 OF 2020
(CNR NO.MHCC010024832020)
IN
SUMMARY SUIT NO. 296 OF 2019
MR. MARUTI SHANKAR VAIRAL ].. Plaintiff.
V/s.
ARUN SURESH GAIKWAD ]..Defendant
None present for the Defendant.
Advocate Ms. Pushpa Goswami for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 28TH SEPTEMBER 2021
ORDER
The Notice of Motion is filed by the defendant for
condonation of delay of 245 days in entering and filing appearance in
summary suit No. 296 of 2019 and for setting aside the ex parte
judgment and decree passed against the defendant and for staying the
execution proceeding.
2. It is the case of defendant that he received the writ of
summons by registered post on 25/06/2019, but the copy of the plaint
and other documents was not received with the summons. He applied
for certified copies on 10/01/2020 and received the copies on
15/01/2020. He could not appoint the advocate immediately due to
financial problems. He appeared before the Court in every hearing, but
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the cost of appointing advocate was almost similar to the amount
involved in the suit.
3. It is the case of defendant that suit is instituted on the basis
of promissory note executed by defendant for consideration of Rs.
20,000/– on 26/12/2017, promissory note of Rs. 20,000 executed by
defendant on 27/12/2017 and promissory note of Rs. 20,000 executed
by defendant on 11/05/2018. The said amount of Rs. 60,000 was
advanced by plaintiff to defendant as personal loan.
4. It is the case of defendant that he was unaware of the legal
procedure and that he was required to appear before the court within
10 days from the service of summons. Therefore, the delay of 245 days
is caused. Defendant further states that plaintiff granted loan of
Rs.10,000/– to defendant and took signature of defendant on blank
promissory note. Defendant is serving as a clerk in the Sales Tax
Department presently known as Goods and Service Tax Department as a
clerk. He stated that he is less educated and requires money for the
education of children and medical expenses. For all these reasons the
defendant has prayed for setting aside the ex parte decree and giving
him the opportunity to contest the suit.
5. Plaintiff has filed say and objected to the Notice of Motion
on the ground that the present motion is barred by limitation and is
filed with an ulterior motive to delay the matter. The writ of summons
was duly received by the defendant. Defendant failed to file his
appearance within 10 days after the service of summons. The reason
given by defendant that he did not receive the copy of complaint will
not help the defendant for setting aside the ex parte decree. Defendant
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has stated that he was appearing in person before the Court also shows
that he is not entitled for setting aside the ex parte decree.
6. Plaintiff has further stated that the defendant could have
appointed advocate through free legal aid if he was unable to appoint
one by paying the fees. It is further stated that the present notice of
motion is filed by the defendant through a private advocate. For all
these reasons plaintiff has prayed for dismissal of the Notice of Motion.
7. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the Summary Suit No.
296 of 2019.
8. Considering the motion and say and submissions of both
learned advocates and documents on record, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No
POINTS FINDINGS
1 Whether defendant has made out
exceptional circumstances for setting aside
the ex parte decree parser in summary suit
No. 296 of 2019?
In the
Negative
2 Whether defendant has shown sufficient
cause for condonation of delay of 245 days
caused in filing appearance before the court
in summary suit No. 296 of 2019?
In the
Negative
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3 Whether defendant is entitled for setting
aside the ex parte decree passed in summary
suit No. 296 of 2019?
In the
Negative
4 What Order ? As per final order
R E A S O N S
AS TO POINT NO.1:
9. As all 4 points are related to each other, they are discussed
at once to avoid the repetition.
10. It is held by the Hon'ble Supreme Court in the case of Rajni
Kumar v. Suresh Kumar Malhotra, reported in (2003) 5 SCC 315, it
is held that,
9. The expression “special circumstances” is not
defined in the Civil Procedure Code nor is it capable of
any precise definition by the court because problems
of human beings are so varied and complex. In its
ordinary dictionary meaning it connotes something
exceptional in character, extraordinary, significant,
uncommon. It is an antonym of common, ordinary and
general. It is neither practicable nor advisable to
enumerate such circumstances. Nonservice of
summons will undoubtedly be a special circumstance.
In an application under Order 37 Rule 4, the court has
to determine the question, on the facts of each case, as
to whether circumstances pleaded are so unusual or
extraordinary as to justify putting the clock back by
setting aside the decree; to grant further relief in
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regard to postdecree matters, namely, staying or
setting aside the execution and also in regard to pre
decree matters viz. to give leave to the defendant to
appear to the summons and to defend the suit.
11. In the present matter, the defendant has to show the
existence of special circumstance which prevented him from appearing
before the court and file his defence. Defendant has made out following
circumstances;
1. After service of rate of summons, he was present
before the court but could not appoint any advocate to
do his financial difficulty.
2. Plaintiff got executed promissory note from the
defendant forcibly by pretending that the same was
required for submitting before the authorities for taking
sanction as he was authorised moneylender.
12. The first circumstance shows that though the defendant
was appearing before the court in the Summary Suit No. 296 of 2019,
he could not appoint advocate due to his financial difficulty. It is
important to note that he has stated in his notice of motion itself that he
is serving as a clerk in the Goods And Service Tax Department. this
shows that he is educated person and gets regular salary from the
government. In the circumstances, it is difficult to hold that 3
promissory notes were got executed from the defendant by the plaintiff
worth Rs. 60,000/– for actual consideration of only Rs. 10,000/. When
defendant in salaried person, it is difficult to hold that he was unable to
engage in any advocate due to financial difficulty.
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13. If defendant was really unable to engage the advocate due
to financial difficulty, he could have approached to the Legal Services
Authority which arranges for advocate free of charge for the eligible
persons. Defendant did not try to get any such legal aid. Therefore, I
have come to the conclusion that the first circumstance cannot be
treated as a special circumstance which will make the defendant
entitled for setting aside the ex parte decree.
14. So far as second circumstance is concerned, as I have
earlier discussed, the defendant is an educated person serving in the
government department as clerk. Therefore, his case that plaintiff got
executed false promissory notes from him by misrepresentation is also
not acceptable at all.
15. Another important aspect which needs to be considered is
that as per the case of defendant he did not get copies of plaint and
documents along with writ of summons. He has stated in his affidavit
in support of the Notice of Motion that he applied for certified copies
on 10/01/2020 and received the same on 15/01/2020. The present
notice of motion was filed on 25/02/2020. Therefore, defendant did not
file the same within 30 days even after receiving the certified copies.
Defendant has himself stated in his affidavit that he was appearing
before the Court in the summary suit. He was not aware of the legal
procedure and hence could not file his appearance within 10 days from
the receipt of rate of summons. The ignorance of defendant of the legal
provisions cannot be considered as a ground for condonation of delay.
The defendant should have made necessary enquiry regarding the
procedure when he was not able to engage in any advocate due to
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financial difficulty. In the background that defendant is a government
servant and working as a clerk, the conduct of defendant does not
appear to be that of a prudent man in the present matter. Defendant
has admitted that the summons was served upon him on 25/06/2019.
He has not given any explanation at all as to why he applied for
certified copies is on 10/01/2020. The ex parte decree was passed on
04/10/2019. Therefore, it is clear that defendant was having
knowledge of the ex parte decree still he failed to take appropriate
action for setting aside the same. Therefore, I have come to the
conclusion that the defendant has not given sufficient cause for
condonation of delay caused in filing the present motion.
16. In the circumstances above, defendant is not entitled for
condonation of delay and setting aside the ex parte decree. I answer
points Nos. 1 to 3 in the negative and in answer to point No.4, I proceed
to pass following order .
O R D E R
1. Notice of Motion No. 914 of 2020 is is dismissed
with costs.
2. Notice of Motion No. 914 of 2020 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 28.09.2021 Gr.Mumbai.
Dictated on : 28.09.2021
Typed on : 28.09.2021
Signed on : 28.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30.09.2021 AT 2.45 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
28/09/2021
Judgment/Order signed by P.O. on 28/09/2021
Judgment/Order uploaded on 30/09/2021
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