Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.6602018 ORDER 1
MHCC010025082018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.660 OF 2018
IN
SUMMARY SUIT NO.1568 OF 2014
Time Mauser Industries Pvt. Ltd. … Plaintiff
Vs.
Maldar Barrels Pvt. Ltd. and Ors. … Defendants
Appearances:
None for plaintiff.
Ld.Adv.Mr.Vikramjit Garewal a/w.Adv.Sriraj Menon I/b. MJ Juris for
Defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 1st December 2021
ORDER
1. This Notice of Motion is filed by defendant no.1. He requested to
condone the delay. He submitted that the order dated 11/8/2015 that is
order in the suit to proceed exparte and all specific orders against
defendant needs to be set aside by condoning delay. The defendants
further submitted that the exparte order dated 16/10/2014 and
13/5/2015 are illegal and without following principles of natural
justice. As per statement of defendant that plaintiff has made false
statement before the Court regarding service of notice. Therefore, the
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NM No.6602018 ORDER 2
defendant requested to initiate appropriate proceedings under Section
340 of Criminal Procedure Code. As per statement of defendants that in
the record the plaintiff has shown Writ of Summons served upon
defendants but he has suppressed the material facts. Actually on merit
this Court has no jurisdiction to try the suit. The plaintiff has issued
notice to defendant no.1 on address mentioned in title clause of the
suit. Actually from December 2013 the defendant is not operating
business there. Now, the office address of defendant no.1 is Motibaug
Compound, Chembur, Mumbai. Plaintiff has addressed various
correspondence to the defendant no.1 in the address at Motibag
compound, in spite of that he has issued summons of the suit on the
address shown in title clause of plaint. Actually from 2013 there is no
one from the defendant though the envelope shows that defendant no.1
refused to accept writ of summons. From the statement of defendant
no.1 the envelope would have returned unclaimed because no one is
there from the side of defendant no.1 to claim the postal envelope but
this fact is falsely mentioned by plaintiff in suit and stated that the Writ
of Summons is duly served upon defendant no.1. This Notice of Motion
is filed by defendant no.1 and defendant No.2 to 4 are shown as
directors of defendant no.1. Ultimately, all the defendants requesting to
set aside the orders. Other grounds shown by defendant is regarding
jurisdiction, that can be considered on merit if Court comes to the
conclusion to allow the Notice of Motion of defendants.
2. Plaintiff has filed reply to the Notice of Motion and submitted
that as per record the postal packets are returned with remark 'Refused'.
It is the submission of plaintiff that plaintiff has issued Writ of
Summons on the address of suit to defendant no.1 to 4. One official of
defendants introduced himself therefore the Writ of Summons was
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NM No.6602018 ORDER 3
issued on that address. Defendant no.1 failed to rebutt the burden by
showing that he is not operating business now on clause title cited in
the plaint. Other grounds in the reply are regarding points raised by
defendant no.1 that can be considered on merit.
3. The main issue of defendant no.1 that plaintiff has shown false
service of writ of summons on record and taking disadvantage of this
fact certain adverse orders are passed against them. The writ of
summons was issued after filing the suit in the title address shown at
Exhibit 1. Plaintiff himself has issued one notice to defendant no.1 on
29/1/2018 on address that is Motibaug, Opposit R.K.Studio, Chembur.
The defendant has produced notice alongwith Notice of Motion that is
at Exhibit A. That notice disclose two addresses of defendant that is one
is cited in plaint and other from Motibag. As per case of defendant from
2013 he is not operating any business at address cited in title but now
he is operating business from Motibaug, Chembur. He has received
notice in the year 2018. The said notice issued by plaintiff to him.
Address in that notice is different than title address. Therefore, he
appeared before this Court and requested to set aside adverse orders
passed against defendants. Defendant has pleaded this fact in para 7 of
Notice of Motion that the plaintiff was aware about the Motibaug
address of defendants inspite of that the writ of summons was issued on
address cited in title clause. Actually, the defendant is not operating
business there. However, statement of defendant is supporting the copy
of notice issued by plaintiff Exhibit A on Motibaug address. The plaintiff
nowhere discloses that how the plaintiff came to know about the
Motibaug address of defendant when the plaintiff has cited different
address in the title of suit. Therefore, prima facie it can be said that the
Writ of Summons is not properly served on defendant. The defendant
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NM No.6602018 ORDER 4
by producing notice Exhibit A specifically shown facts that writ of
summons was issued to them on address which was not there in
operation but the second notice of insolvency come from Motibaug
address was duly served to them through that they came to know about
the pendency of this suit and immediately they have appeared on
record. The other facts from the side of defendants needs to be
considered on merit but prima facie from the statement of defendant it
is necessary to allow him to contest the suit by putting his defence on
record. The defendant has also requested to initiate proceeding under
Section 340 of Criminal Procedure Code but for initiation of that
proceeding, evidence needs to be taken on record. Therefore, defendant
is at liberty to move separate Notice of Motion under Section 340 of
Criminal Procedure Code. Now, the defendants are allowed to put their
defence on record by way of appearance. Accordingly, following order is
passed:
ORDER
1. Notice of Motion No.660 of 2018 is allowed.
2. The defendants are permitted to appear on record.
3. The adverse orders against defendants are set aside.
4. Notice of Motion No.660 of 2018 stands disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 01/12/2021 City Civil Court, Gr. Bombay
Dictated on : 01/12/2021,
Transcribed on : 02/12/2021,
HHJ signed on : 06/12/2021
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NM No.6602018 ORDER 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06/12/2021 5.40p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
01/12/2021
JUDGEMENT /ORDER signed by P.O. on 06/12/2021
JUDGEMENT /ORDER uploaded on 06/12/2021
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