Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 350/15 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 820 OF 2018
(CNR NO.MHCC010029232018)
IN
SUMMARY SUIT NO.350 OF 2015
(HIGH COURT SUMMARY SUIT NO.510 OF 2009)
Torrecid India Private Limited ...Plaintiff
V/s
M/s.Mahalaxmi Enterprise ...Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 05/02/2019
Adv. Mr.Prachi Rawal for plaintiff.
Adv. Mr.Redekar for defendants.
ORDER BELOW NOTICE OF MOTION NO.820/18
1. This Notice of Motion is taken out by the defendant for
setting aside the Judgment and Decree passed in Summary Suit
no.350/15 on 6/2/2016, exparte against the defendant.
2. The plaintiff has resisted to the said Notice of Motion by
filing reply.
3. Read the Notice of motion and reply. Heard.
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NM In SC 350/15 Oral Order 2
4. The learned advocate for the defendant has submitted that in
the aforesaid summary suit the Writ of Summons was not served upon
the defendants. He has submitted that the plaintiff filed the false and
bogus suit against the defendant for the refund of Security deposit
amount together with interest. It is submitted that the plaintiff was
supposed to make the payment of Rs.22,14,822/ to the defendant and
after deducting the amount of Rs.21,00,000/ being security deposit,
the plaintiff is liable to make the payment of Rs.1,14,822/ to the
defendant, so also, that the plaintiff was liable to pay compensation for
two months to the defendants which comes to Rs.10,00,000/. It is
submitted that the plaintiff is liable to make the payment of
Rs.30,00,000/ to the defendant. It is submitted that the defendant
came to know regarding the exparte Judgment and decree on
6/2/2016, when the defendant received the notice through the
advocate for plaintiff. It is submitted that the service shown as done
upon the defendants has not been signed by the defendant or its
partner, it is signed by someone else. The acknowledgment does not
bear the signature of defendant's partner. It is submitted that the
service is not proper. Therefore, it is requested to set aside the said
exparte Judgment and decree and to make the Notice of Motion
absolute.
5. Per contra, the learned advocate for the defendant has
submitted that the Notice of Motion is not tenable as the defendant has
not shown any special circumstances for setting aside the exparte
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NM In SC 350/15 Oral Order 3
decree. It is submitted that the defendants have suppressed the
material facts from the Court and they have not approached to the
Court with clean hands. It is submitted that writ of summons was
dispatched to the defendants on 15/5/2015 by registered Post through
the bailiff of the Court and office of Bailiff received the
acknowledgment of Writ Of Summons on 24/6/2015. It is submitted
that the writ of summons was duly received by the defendants on
16/5/2015 but the defendants did not appear in the Suit intentionally
and deliberately, therefore, the suit was proceeded exparte and
ultimately the exparte decree came to be passed.
6. It is also submitted that the plaintiff served upon the
defendants by Email on 5/4/2016 the Exparte Judgment through the
Email ID of its partner Mr.Dayanand Mapuskar thereafter, the plaintiff
filed the execution proceedings. It is submitted that the notice of public
auction in respect of the property attached and for Sale was also
published in two Newspapers. It is submitted that the defendant and its
partners were well aware regarding the entire proceedings but they
never serious to appear in the suit or in the execution proceedings. It is
submitted that the defendants have raised the false contention in the
Notice of Motion that they have to recover huge amount of
Rs.30,00,000/ from the plaintiff. It is submitted that the plaintiff was
entitled to recover a sum of Rs.7,61,862/ from the security deposit of
Rs.21,00,000/ . It is submitted that without paying the outstanding
dues the defendant has raised the bogus counterclaim against the
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plaintiff. Therefore, it is requested that the Notice of Motion is
afterthought, false and bogus with the knowledge of defendants. Lastly,
it is requested to dismiss the Notice of Motion with heavy costs.
7. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record.
8. It appears that the plaintiff filed the aforesaid suit for the
recovery of an amount of Rs.10,30,028.55 Ps. It appears that plaintiff
filed the service affidavit at Exhibit 2 on 13/8/2015 and my learned
predecessor in office passed an order “ Defendant is duly served with
Writ of Summons, but failed to appear. Suit to proceed exparte.” It
appears that on 6/2/2016 the said suit partly decreed with
proportionate costs and the defendants were directed to pay
Rs.8,95,677/ to the plaintiff with interest at the rate of 7% p.a. from
01/05/2014 till filing of the suit at the same rate from the date of filing
of the suit till the date of recovery.
9. It appears that the plaintiff has filed the execution
proceedings, in the present case the defendant has merely contended
that the writ of summons is not served upon the defendant or its
partners. It is pertinent to mention here that the writ of summons was
issued by the Court through the Sheriff department by registered post
and the acknowledgment was received to the Court and on that basis
the service affidavit Exhibit 2 was filed by the clerk of Board
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NM In SC 350/15 Oral Order 5
department, City Civil Court. Therefore, it cannot be said that the suit
summons was not duly served upon the defendants.
10. For setting aside the exparte decree under Order 37 Rule 4 of
the Code of Civil Procedure, the defendants must satisfy the Court
simultaneously, that they have special circumstances for getting exparte
decree set aside and that they have a good defence or good case on
merit. To spell out Special Circumstances, the defendant has to firstly
satisfy the court that there was not due service of writ of summons or
that he was prevented by the sufficient cause for not appearing in the
suit. In the absence of the first condition it may not be necessary to go
into the second condition at all.
11. On the cost of repetition it is necessary to mention here that
in the matter the Writ of Summons was issued on the correct address of
the defendants through the Court by the Registered Post and it was
duly served. Mere saying that the acknowledgment does not bear the
signature of any of the partners of the defendant is not suffice.
Therefore, I do not find any special circumstances for setting aside the
exparte decree. As the defendant has totally failed to satisfy to the
Court that the writ of summons was not served upon it or that they
have good and meritorious defence. Hence, Notice of Motion needs to
be dismissed. In the result, following order:
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: ORDER :
1. Notice of Motion no.820/18 is hereby dismissed.
2. No order as to costs.
(M.M.UMAR)
Judge,
5/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 05/02/2019.
Date of Transcription : 05/02/2019.
Date of signature : 12/02/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/2/2019 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
5/2/2019
Judgment/order signed by P.O on 12/2/2019
Judgment/order uploaded on 12/2/2019
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