Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010025952020 Presented on 02/03/2020
Registered on 02/03/2020
Decided on 29/02/2024
Duration 03Y: 11M: 27D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 953 OF 2020
IN
SUMMARY SUIT NO. 320 OF 2018
M/s. NI Plast India ]...Applicant/org.Defendant
V/s.
M/s. Satyen Polymers Pvt. Ltd. ]...Respondent/org.Plaintiff
Appearance:-
Ld.Advocate Ms. Nisha Shah i/b. Kalpesh Joshi Associates for the
Applicant/original defendant.
Ld. Advocate Mr. Mahesh Subramaniam for the Respondent/original plaintiff.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 29/02/2024.
O R D E R
01. This notice of motion (NM) is filed by the defendant for setting
aside the ex-parte order dated 22/02/2019, to condone the delay and to grant
leave to defend to the defendant.
02. This notice of motion is taken out by the defendant on
21/02/2020. Ld. counsel for the plaintiff has filed affidavit in reply to the NM
and while resisting it, submitted that NM may be rejected.
03. It is submitted on behalf of the Ld counsel for the defendant that
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he served the writ of summons in the month of May 2018. However, he was
under treatment from 05/05/2018 to 29/07/2018 and further his doctor advised
him not to travel therefore, he could not contact his counsel in the Mumbai.
He is resident of Kolhapur. He met his counsel on 13/10/2018 and appeared in
the matter and came to know matter was pending before Court Room No. 28
on 20/10/2018. Further, it was adjourned on 22/02/2019 and it was transferred
to the Court Room No. 20. On 22/02/2019, the ex-parte order came to be
passed against him and the matter was referred for Lakadalat to be held on
17/03/2019. The matter was not settled in the Lokadalat and therefore, it was
placed before regular Court Room No. 9 on 20/03/2019. Again, matter was
referred for mediation and adjourned to 16/04/2019. On that day, both parties
were absent and therefore, matter was adjourned on 23/07/2019. The
defendant taken out chamber summons No. 1385/2019 to condone the delay
and seek leave to defend. However, said chamber summons came to be
dismissed on 17/10/2019. On 04/10/2019, he came to know that ex-parte
order came to be passed on 22/02/2019, therefore, he has filed present NM to
set aside ex-parte order dated 22/02/2019, to condone the delay and
permission to leave to defend. The defendant has filed medical certificate as
well as copies of roznama on record alongwith affidavit in support of his
contentions. Hence, considering the reasons his NM may be allowed.
04. On the other hand, it is argued on behalf of the plaintiff that the
defendant was served with the writ of summons on 08/05/2018, however
failed to appear before the Court and therefore ex-parte order came to be
passed on 22/02/2019. On 20/03/2019, defendant had given undertaking to
file the vakalatnama. Defendant had taken out chamber summons
No. 1385/2019 on 23/07/2019 for granting leave to defend which came to be
dismissed on 17/10/2019. The present NM is also filed on the same grounds.
The plaintiff has filed evidence on affidavit of P.W.1 alongwith original
documents on record on 29/11/2019. Thereafter, defendant has taken out this
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NM on 21/02/2020 and it is registered on 11/03/2021 and submitted registered
NM on 22/07/2022. The defendant served the copy of NM on 30/01/2023 to
the plaintiff. Thus, the defendant has caused delay in conducting NM. Even
otherwise, NM is not maintainable in view of Section 114 r/w. Order 47,
Rule 1 of Civil Procedure Code. Though, defendant has taken out this NM,
he is not seeking relief of condonation of delay for filing appearance in the
suit. The defendant had not submitted any proposal to the plaintiff. Even,
defendant was not present for mediation. Therefore, mediation was failed.
Thus, the defendant has suppressed the material fact from the Court as he was
not under treatment as contended by him. The defendant has not given proper
and satisfactory reason to condone the delay. Hence, NM may be dismissed.
05. Perused NM and reply. Heard both the parties. On perusing
record, it appears that writ of summons is served on the defendant on
08/05/2018. It appears that defendant has appeared in the matter on
22/02/2019 through counsel. On the same day, order was passed to proceed
ex-parte against the defendant, as he has not appeared within stipulated period
in the matter. However, it appears from roznama that as there was element of
settlement matter was referred for Lokadalat and it was adjourned on
20/03/2019. On perusing roznama of Lokadalat dated 17/03/2019, it appears
that defendant was not present and therefore, matter could not be settled.
06. On 20/03/2019, the counsel for the defendant filed undertaking
to file the vakalatnama. Further, as it was submitted matter is likely to be
settled, therefore it was referred for mediation and adjourned on 16/04/2019.
On perusing roznama dated 16/04/2019, it appears that matter was pending
before Court Room No. 20 and it has been transferred to Court Room No. 9.
Further, on perusing roznama dated 23/07/2019, it appears that defendant had
filed vakalatnama and draft chamber summons for condonation of delay. The
vakalatnama is marked as Exh. 03. The chamber summons was registered
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bearing No. 1385/2019 which came to be dismissed on 17/10/2019.
Thereafter, plaintiff filed affidavit and list of documents vide Exh. 03 and 04
respectively. The matter was adjourned for verification of evidence affidavit
to 21/02/2020. However, on that day the defendant filed draft NM i.e. present
motion.
07. On perusing the reason given by the defendant, it appears that it
is submitted that he was under treatment since 05/05/2018 to 29/07/2018 and
to support this contention, he has filed xerox copy of medical certificate.
Though, plaintiff has disputed the said fact however, the defendant has filed
medical certificate as well as contended on affidavit. Further, it is the
contention of defendant that efforts were made to settle the matter between the
parties. The contention of the defendant is supported by record, as discussed
above matter was referred for Mediation and Lokadalat.
08. It appears from record that chamber summons No.1385/2019
taken out by the defendant to condone the dealt and to grant leave to defend
came to be dismissed on 17/10/2019. The said chamber summons was
dismissed on the ground that it was not the stage to grant the leave. It is the
contention of the plaintiff that reliefs claimed in the present NM is similar like
chamber summons No.1385/2019. It is pertinent to note that as per the prayer
clause (a) defendant has prayed to set aside the ex-parte order dated
22/02/2019. Further, by prayer clause (b) defendant has prayed to condone the
delay of 254 days and further grant leave to defend to the defendant.
Admittedly, it is not the stage whether to grant or refuse leave to grant to the
defendant. Therefore, said prayer of the defendant cannot be considered at this
stage.
09. However, so far as prayer clause (a) and part prayer clause of (b)
can be considered in view of the facts and circumstance of the case. As
discussed above, it appears from record that matter was referred for Lokadalat
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and Mediation. Though, the matter is not settled, it appears that efforts were
made to refer the matter for mediation and lokadalat. Even, as discussed
above defendant has supported his contention that he was under treatment
during 05/05/2018 to 29/07/2018 by filing medical certificate. The plaintiff
has submitted that defendant has not prayed to condone the delay for the
appearance. As discussed above, it appears that already vakalatnama of the
defendant is marked as Exh. 03 on 23/07/2019. Therefore, though there is no
specific prayer of the defendant to condone the delay for his appearance
however, part of the prayer (b) of the defendant to condone the delay of 254
days is to be construed as to condone the delay for appearance because
defendant has further prayed to grant leave to the defend. As discussed above,
it is not the stage to decide whether defendant is entitled for leave to defend.
Therefore, I am of the view that there is no force in the contention of the
plaintiff’s submission.
10. It is the contention of the plaintiff that NM is not maintainable in
view of Section 114, Order 47, Rule 1 of CPC. It is pertinent to note that the
said provision deals with review of decree or order. Admittedly, the defendant
has not filed this NM to review any order or decree. It is the specific prayer of
the defendant to set aside the ex-parte order dated 22/02/2019 and to condone
the delay. As discussed above, I am of the view that the defendant has given
proper reason to set aside the ex-parte order and to condone the delay.
However, at the same time, it is to be taken into consideration that plaintiff
has filed evidence affidavit on record and defendant has delayed the
proceeding after taking out NM since 21/02/2020 to 30/01/2023. Therefore,
inconvenience caused to the plaintiff needs to be considered by imposing
costs. Hence, I proceed to pass the following order:-
ORDER
1. Notice of Motion No. 953 of 2020 is partly allowed.
2. The delay in filing the Vakalatnama is condoned and Ex-parte
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order dated 22/02/2019 is set aside, subject to costs of Rs. 3,000/-
(Rupees Three 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
defendant be taken on record.
4. Notice of Motion No. 953 of 2020 is disposed of accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 29/02/2024. Court Room No.81
Dictated on: 29/02/2024
Corrected and signed on: 01/03/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/03/2024 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 29/02/2024
JUDGMENT/ORDER signed by P. O. on 01/03/2024
JUDGMENT/ORDER uploaded on 02/03/2024
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