Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.885 OF 2018
IN
SUIT NO.2578 OF 2017
Mr.Purshottam Behra ...Plaintiff
V/s.
Shakti Natural Gas Pvt.Ltd. & ors. ...Defendants
Appearances:
Ld.Adv.Rajat for plaintiff
Ld.Adv.Ms.Pragati Thakkar for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 22nd February,2019
ORDER
By way of this notice of motion defendant Nos.1 and 3 prayed for
setting aside exparte order dt.31.01.2018 against defendant No.1.
2. In supporting affidavit of Mr.Harmeet Yadwinder Bindra,
submitted that, he is Director of defendant No.1/company. The present
suit was kept for filing of the affidavit of service on 31.01.2018, but
Presiding Officer was on leave and matter was taken up before In
charge Court without formal intimation to them. On 31.01.2018 In
charge Court pleased to pronounce the order to proceed exparte
against defendant No.1 as even though the service has been completed
to the said defendant, no formal appearance has been entered into by
said defendant. All the belonging of defendant No.1 are in possession
of defendant No.2, who was Director of the said company and being a
Director of defendant No.1 he instructed Advocate to enter an
appearance on behalf of defendant Nos.1 and 3. However, since the
MHCC01-003038-2018
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seal, rubber stamps and all the official papers belong to defendant NO.1
were in possession of defendant No.2, the Advocate could not file
vakalatnama on behalf of defendant No.1. Since last two years the
relationship of defendant Nos.2 and 3 are strain, which does not permit
this defendant No.1 to procure necessary stamp, seal from the
possession of the defendant No.2. In such circumstances, they are not
able to secure appearance before this Court, due to which on31.01.2018
the suit was proceeded exparte by the incharge Court. Hence, they
prayed that, they have strong case on merits and plaintiff has prima
facie failed to make out any case. Therefore, if defendant No.1 if not
permitted to appear before the Court, grave injustice and irreparable
loss and damage shall be caused to defendant, which cannot be
compensated in monetary terms and therefore, he prayed that, notice of
motion be made absolute and no prejudice will be caused to plaintiff if
exparte order against defendant No.1 is set aside.
3. After service of this notice of motion, plaintiff filed replyin
affidavit and denied all the contentions of defendant No.1 in toto to
allow the notice of motion. They submitted that, notice of motion as
filed is false, vexatious, gross abuse of process of law. Defendant No.3
has not approached before this Court with clean hand and suppressing
material facts. Therefore, notice of motion being not maintainable
deserves to be rejected.
4. Plaintiff further submitted that, plaintiff has not moved the
matter before Incharge Court on that day. Their Advocate was present
at the first session, therefore, allegations of defendant in respect of
taking matter before Incharge Court for passing exparte order by
plaintiff has no substance. Therefore, notice of motion be dismissed
with heavy costs.
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5. Heard learned Advocate Ms.Pragati Thakkar for defendant Nos.1
and 3 and learned Advocate Mr.Rajat for plaintiff. Perused the record
and submissions.
6. As per service affidavit writ of summons came to be served upon
defendants vide Exh.5. The first para of service report dt.29.11.2017 of
Bailiff reads as under,
“This Writ of summons was sered by my Bailiff on 29.1.2017 at about
10.30 a.m. upon Shri Anand Shetty, father of Vinod Shetty defendant
No.2 who willingly accepted for Vinod Shetty defendant No.2 and
Shakti Natural Gas Pvt.Ltd, defendant No.1, Rakesh Pangrekar,
defendant No.6, residential address at Empire View Bldg., Plot No.85,
Flat NO.302, Shere Punjab Prima Line Road, Andheri (E), Mumbai69.”
7. On 31.01.2018 the matter was taken up before Incharge Court.
Wherein service affidavit was tendered. The Bailiff report also shown
summons were served upon defendant No.2 for himself and for
defendant Nos.1 and 6 as well as the suit ordered to be proceeded ex
parte against defendant Nos.1 to 6, as no one appeared when the
matter was called. As such, it is the contentions of defendant No.1 that,
without intimation matter was mentioned before the Incharge Court,
But when the writ of summons was duly served through Bailiff, it is the
duty on the part of defendants to appear before the Court or before the
Incharge Court to place their appearance before the Court. However,
they failed to do so and now they blamed it to plaintiff. Furthermore it
is pertinent to note that, it is contentions of defendant No.3 that
defendant No.2 is also one of the Director along with him having strain
relationship and who was having in possession of stamps, seal and
papers of defendant No.1, therefore, they could not appear on that
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particular day, even though he was instructed his Advocate. This is the
inability on the part of defendant No.1 and 3 as they have failed to
make compliance the directions of this Court to appear before the Court
or give directions to Advocate to undertake to file vakalatnama on
behalf defendant Nos.1 and 3. But no such act was shown or appears to
be done and therefore, Incharge Court has no other way but to pass
order as to proceed exparte against defendant Nos.1 to 6.
8. Now, the reasons shown by defendant No.3 being a Director of
defendant No.1/company may be beyond his control, but due diligence
must have been shown. Blaming to other side or because of defendant
No.2, the another Director, he could not appear; cannot be the ground
to set aside exparte order. Therefore, I do not find any substance in
this notice of motion to allow defendant No.1 to proceed in this suit due
to their negligent in appearing before the Court in spite of due service
of writ of summons through Bailiff, as per service affidavit. Hence,
notice of motion has no substance, it deserves to be rejected. In the
circumstance, parties are directed to bear their costs and hence, I
proceed to pass the following order :
O R D E R
1. Notice of Motion No.885 of 2017 in Suit NO.2578 of 2017
stands rejected.
2. Parties to bear their costs.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.: 22/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 22.02.2019
Transcribed on : 25.02.2019
Signed on : 25.02.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.02.2018 at 1.53 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 22.02.2018
Judgment/order signed by P.O. on 25.02.2018
Judgment/order uploaded on 26.02.2018
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