Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.992 OF 2019
(CNR No.MHCC01-002598-2019)
IN
SUMMARY SUIT NO.1194 OF 2015
GTC Foods Pvt. Ltd.
A Company registered under the
Companies Act, 1956, and having its
Registered office at
4083, Naya Bazar, Delhi- 110 006 (India )
...Applicant
(original
Defendant)
IN THE MATTER BETWEEN
Yashika Agri Trade
A Proprietary Firm
and having its office at
Devdarshan Building, Shop no.05,
Mahim, Mumbai- 400 016.
Verses
GTC Foods Pvt. Ltd.
A Company registered under the
Companies Act, 1956, and having its
Registered office at
4083, Naya Bazar, Delhi- 110 006 (India ) ..Defendant
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 3.1.2022
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in Suit No.1194 of 2015
Adv. Anand Mishra for the plaintiffs.
Adv. Pallavi Zavari for the defendant.
ORAL ORDER
1. This is a notice of motion taken out by the defendant for
condonation of delay, if any and setting aside ex-parte decree order
passed on dtd. 12.11.2016.
2. The notice of motion is replied by the plaintiff.
3. Heard respective advocates at length and perused the
record.
4. The defendant has submitted that this notice of motion is
filed for stetting aside the ex-parte decree passed against them on the
basis of two grounds i.e. 1). the suit summons are not duly served on
the defendant and 2). there are reasonable grounds for setting aside the
ex-parte decree.
5. It is submitted that plaintiff is unregistered proprietary
firm . It is well settled principle of law that the suit cannot be instituted
by the Proprietorship firm by his own name. The Proprietorship firm is
not a legal entity which can sue or to be sued in its own name.
Therefore, the suit is not maintainable and the proceedings initiated by
such Proprietorship firm is a nullity. In support of this contention the
advocate for the defendant placed reliance on the authority in the case
of P. C. Advertising V/s.. Municipal Corporation of Delhi 73(1998) DLT
259/ 1998 (III) AD Delhi 133. It is held there in that, “
the suit filed in
the name of Proprietorship firm which was neither a registered
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in Suit No.1194 of 2015
company nor joint family nor a partnership firm, in the absence of any
prayer to seek amendment to allow sole proprietor to sue in his own
name was not maintainable”.
6. Advocate for defendant further placed reliance on the
authority in the case of Miraj Advertising Corporation V/s. Vishaka
Engineering 115(2004) DLT 471. It is held therein , “
A Proprietorship
firm has no legal entity like a registered firm. A suit cannot be
instituted in the name of an unregistered Proprietorship firm and the
said suit is to be instituted in the name of the proprietor”.
7. Relying upon the aforesaid authorities it is submitted that
the order / decree passed by this court is neither sustainable nor
executable.
8. Secondly, it is submitted that the suit claim of the plaintiff
is false and frivolous. On merit the plaintiff did not have any case. The
court which tried the suit had no jurisdiction to try the suit.
9. Thirdly, it is stated that the defendant was neither aware
nor been duly served with the writ of summons of this court. He came
to know about the ex-parte order on dtd. 27.11.2018 when they have
been served with the execution petition. Therefore, the ex-parte decree
passed in Suit No. 1194/2015 be set aside in the interest of justice.
10. The plaintiff has been duly served with the notice of motion
and filed reply. In reply it is submitted that the defendant was duly
served with the writ of summons. They have take out this notice of
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motion after laps of almost four years. The execution process is pending
before the appropriate court in Delhi. Hence, ex-parte decree cannot be
set aside. It is further submitted that the plaintiff has sued defendant in
the name of proprietor. Further more, this issue have no relevance in
the present notice of motion. The core issue of the suit was recovery of
legal debt and not the locus of plaintiff. Further, it is submitted that the
plaintiff has lawfully served the defendant in Mumbai, as the defendant
has office in Mumbai and also received commission/brokerage in his
Mumbai account. The cause of action arose partly in Mumbai, hence
suit is maintainable in Mumbai. Further, it is submitted that the
application is barred by law of limitation. The right to defend has been
waived by the defendant. The only remedy for defendant is to contest
execution proceedings. Apart from this it is the stated that the
defendant was duly served with writ of summons. The authorized
person from the Board Department had after being satisfied with reply
to service of summons have filed affidavit of service on record. The
defendant failed to prove any fraud or deficiency in service of summons.
Therefore, the decree which has been lawfully passed this court cannot
be set aside. No sufficient ground has made out by the defendant for
setting aside ex-parte decree. Hence, notice of motion may be rejected
with cost.
11. The defendant filed rejoinder to the reply given by the
plaintiff and opposed the contents of the reply stating as to how the
proprietorship concern cannot sue or sued in the name of the
proprietorship concern. The facts narrated in the rejoinder are also
taken into consideration. It is the undisputed fact that ex-parte decree
came to be passed against the defendant on dtd.12.11.2016 and
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execution proceeding is pending before the court at Delhi. It is also
visible from the record that the decree has been stayed by order dtd.
4.6.2019 and as per said order the decree was to be stayed after
depositing 50% of the decreetal amount by the defendant. It also
transpired from the record that said amount has been deposited by the
defendant.
12. Now it is necessary to examine whether grounds putforth
by the defendant for setting aside ex-parte decree are sufficient or not.
It is undisputed that present notice of motion came to be filed after four
years of the ex-parte decree. There is considerably huge delay in filing
this notice of motion. To that effect the defendant has submitted that he
is resident of Delhi and had no contact with the good advocate, who can
represent his case before this court at Bombay. It took time to engage
the advocate and get the certified copies of the suit. Further, the
defendant is the company. The matter needed to be putforth before the
directors, got approved by the directors and thus authorized
representative of the defendant started searching relevant documents
including ledger account, Emails, Debit notes etc. After collection of the
documents and getting it drafted through the advocate, defendant could
furnish it before the court. There is no undue delay in moving this
notice of motion. It is further submitted that the defendant may get fair
opportunity to contest the suit by filing leave to defend and written
statement on record.
13. It is evident from the record that the defendant is the
private limited company. It is the De-jure person run by De-facto
persons. In the said circumstances there may be some issue regarding
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service of writ of summons on the appropriate authority and
communication between the directors on the point of receipt of service.
In said evidently, I find that there is substance in the submission of the
defendant that they could not appear before the court on fixed dates.
The record shows that the writ of summons is duly served on the
address of the defendant. The service cannot be disputed but the
communication of service to the appropriate directors of the company
may be the matter of issue. Hence, I hold that the defendant can get
benefit of the said issue. Secondly, the reasonable ground for setting
aside the ex-parte decree needs to be analyzed on merit. Here, it reveals
that the defendant has taken plenty of defences and putforth the same
in the notice of motion. It is pointed out that the proprietorship firm
cannot sue in the name of proprietorship concern. Thirdly, it is stated
that the court at Bombay have no jurisdiction to try and entertain the
present suit. Apart from this, it has been pointed out that the alleged
transaction though narrated in the suit plaint is totally false. There is
no contract in-between the parties. The defendant have meritorious
ground to defend the suit, considering the said aspects, I hold that
there is reasonable ground for setting aside the ex-parte decree passed
against the defendant.
14. While setting aside ex-parte decree the defendant may
apply to the court by which the decree was passed for an order to set
aside and if court is satisfied with the summons were not duly served or
that he was prevented by any sufficient means from appearing when the
suit was called on for hearing, the court may make such order setting
side decree against him as it thinks to fit and shall appoint a day for
proceeding with the suit.
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15. If, either or this case contentions is satisfied, the court must
set side the ex-parte decree. Here, on perusal of the contents of the
notice of motion and rejoinder it appears that the defendant have
successfully putforth the grounds under which he was prevented from
hearing opportunity before the court when the suit was called on for
hearing.
16. The defendant have raised objections regarding
jurisdiction, maintainability of the suit and cause of action. It shows
that certain triable issues and meritorious grounds are made out by the
defendant to reopen the suit by setting aside ex-parte decree passed
against it. To my mind if ex-parte is set aside the same is not going to
cause any irreparable loss or harm to the plaintiff. If, the defendant is
allowed to appear and contest the suit the controversy will decided on
merit and both the parties will get fair opportunity to putforth their
claim and defence before the court. It transpires from the record that
the defendant have putforth satisfactory ground for not appearing in
the suit proceeding. In such circumstances it will be in the interest of
justice to set aside the ex-parte decree passed on 12.11.2016 by
condoning delay in setting aside ex-parte.
17. As a result of aforesaid discussion, I have arrived at the
conclusion that the notice of motion deserves to be allowed and made
absolute in the interest of justice subject to certain conditions. Hence, I
proceed to pass following order:
ORDER
1. The Notice of Motion no.992/2019 is allowed and made
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absolute in terms of prayer clause -(a),(b)and (c) of said
notice of motion.
2. The ex-parte decree passed in suit No. 1194/2015 is set aside
by condoning delay subject to payment of cost of Rs.20,000/-
by the defendant to the plaintiff and original Suit be restored
accordingly.
3. The Notice of Motion No.992/2019 is disposed of.
Date: 3.1.2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 3.1.2022
Typed on : 4.1.2022
Signed on :
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in Suit No.1194 of 2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
6.1.2022 5.00 p.m. ( K.M.RANA)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
3.1.2022
JUDGMENT/ORDER signed by
P.O.on
6.1.2022
JUDGMENT/ORDER uploaded on 6.1.2022
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