Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.11842019 ORDER 1
MHCC010030542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1184 OF 2019
IN
SUMMARY SUIT NO.1837 OF 2014
Rakesh Jivraj Jain … Plaintiff
Vs.
M/s.Classic Dyes & Chemicals & Ors. … Defendant
Appearances:
Ld.Adv.Mr.Sanjiv Hariyakar for plaintiff.
None for defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL.
(C.R.NO.15)
DATE : 19th April 2022
ORDER
1. This Notice of Motion is filed by defendants and requested to set
aside exparte Judgment and decree dated 5/10/2016. The defendants
further requested to condone delay of 831 days for taking out Notice of
Motion and to stay the execution in Execution Petition No.96/2018
pending in the Court of CJSD, Tirupur. It is the submission of
defendants that they came to know about Judgment and decree when
bailiff came for service of execution petition on 19/5/2018. Actually
defendants have changed their registered address inspite of that the
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NM No.11842019 ORDER 2
plaintiff has shown due service and accordingly exparte judgment is
passed. After receipt of notice of the execution petition the defendants
checked the record and they came to know about exparte decree.
Actually whatever delay is caused for taking out the Notice of Motion, it
is caused because plaintiff has shown wrong service of writ. Therefore,
the defendant requested to condone the delay and allow them to enter
their appearance in original Suit No.1837/14.
2. Defendants have filed affidavit of service to show that Notice of
Motion is duly served but the plaintiff failed to appear on record.
3. As per record the suit is decreed on 5/10/2016 and defendants
want to restore the same. First submission of defendant that they have
changed address and therefore there is no due and proper service of
summons on defendants. The defendant has produced Exhibit B, the
Government of Tamilnadu has issued certificate regarding change of
address of the defendants. On perusal of Exhibit B it appears that the
defendants have changed their address with effect from 3/9/2015. The
plaintiff has filed suit on 27/11/2014. The plaintiff has also filed service
affidavit alongwith postal closed envelope. The three envelopes are
addressed to the defendants at title address cited in the original suit.
Exhibit B which is produced by defendant itself shows that before
change of address the registered address of defendants was the address
cited in the title of the plaint. But the defendants have changed address
from 3/9/2015. The postal envelope which are returned to sender with
endorsement 'refused' are dated 24/1/2015, means on 24/1/2015 that
is before 3/9/2015, the defendants were having business on the cited
address of the plaint. However, refusal to accept the summons means
due service and therefore on the ground of change of address with
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NM No.11842019 ORDER 3
effect from 3/9/2015 cannot be said that the suit summons is not duly
served on them.
4. Record and relevant dates which are pointed out in earlier para
shows that on the date of service of summons, defendants were having
business in the cited address in the title of suit. Therefore, the reason
that defendants came to know about suit when they received notice of
execution petition is unbelievable. However, the defendants have not
disclosed on which address they have received execution notice. On the
contrary, the relevant dates pointed out in earlier para shows that just
after receipt of execution notice the defendants try to restore suit which
is at all not desirable. Therefore, the Notice of Motion deserves to be
dismissed. Accordingly, I proceed to pass following order:
ORDER
1. Notice of Motion No.1184 of 2019 is hereby dismissed.
2. Notice of Motion No.1184 of 2019 is disposed of
accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 19/04/2022 City Civil Court, Gr. Bombay
Dictated on : 19/04/2022,
Transcribed on : 19/04/2022,
HHJ signed on : 20/04/2022
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NM No.11842019 ORDER 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
21/04/2022 5.45p.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
19/04/2022
JUDGEMENT /ORDER signed by P.O. on 21/04/2022
JUDGEMENT /ORDER uploaded on 21/04/2022
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