Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.895 OF 2021
IN
SUMMARY SUIT NO. 100 OF 2017
STATE BANK OF INDIA, ]
A corporation established under the ]
State Bank of India Act, 1955, ]
having one of its Branch Office at ]
M.B.P.T. Workshop Building, ]
N.V. Hakhwa Road, Mazgaon, ]
Mumbai400 010. ].. Plaintiff.
V/s.
SMT. RABIYA MUNGI, W/O ]
Mr. Mushtaq Umar Mungi(Borrower)]
Having address at 39/3, Khatija ]
Manzil, Hussain Patel Marg, ]
Mazgaon, Mumbai – 400 010. ]..Defendants
Advocate Mr. Sayed Asif Abba Naqui a/w Advocate Mr. Arif Khan
for the Defendant.
Advocate Mr. Abhishek Bhaduri for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 25th AUGUST, 2021
ORDER
The Notice of Motion is taken out for condonation of delay
of 11 days caused in filing appearance of the defendant in Summary
Suit No.100 of 2017.
2. It is the case of the applicant (Original Defendant) that the
plaintiff has instituted the suit against the defendant for recovery of the
money. The writ of summons was served upon the daughterinlaw of
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the defendant on 06.02.2018 when the defendant was not present at
home. She had gone to her native place at Ratnagiri. She returned
back on 20.02.2018. Thereafter, daughterinlaw informed her about
the packet received from the Court. The defendant has called her
advocate and thereafter, her Vakalatnama was prepared and sought to
be filed on record. However, there was delay of 10 days in filing
Vakalatnama. The defendant has further stated that the plaintiff will
not suffer any hardship, if she is allowed to appear. Hence, she has
prayed for condonation of delay.
3. The plaintiff has filed affidavitinreply and has denied the
contents of the Notice of Motion. It is stated that the Notice of Motion
is not maintainable. The specific reasons are not mentioned for
condonation of delay. It is filed with motive to delay the recovery of
monies. The defendant has not explained each day of delay. The
medical papers filed by the defendant on record are back dated and not
relevant in the present matter. The defendant has ignored the
provisions of law and it cannot be an excuse for condonation of delay.
There is no provision of condonation of delay under Order37 of C.P.C.
For all these reasons the plaintiff has prayed for dismissal of the Notice
of Motion.
4. I have heard both learned Advocates at length. I have gone
through the record of this notice of motion and the Summary Suit No.
100 of 2017.
5. Considering the Notice of Motion and documents on
record, following points arise for my determination and my findings to
them are as stated below for the following reasons;
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Sr.
No
POINTS FINDINGS
1 Whether the defendant has shown sufficient
cause for condonation of delay ?
In the
Affirmative
2 What Order ? As per final order
R E A S O N S
AS TO POINT NO.1:
6. It is the case of the defendant that the writ of summons was
served on 06.02.2018 on her daughterinlaw. Therefore, service is not
denied at all. The defendant has stated that she returned from her
native place and she came to know about writ of summons on
20.02.2018. The present Notice of Motion is filed on 26.02.2018.
Therefore, there is delay of 10 days in filing Notice of Motion.
7. The defendant has produced various medical papers on
record stating that she was ill and suffering from various ailments.
However, the medical papers are not relevant for two reasons. The first
one is that the defendant has not stated anywhere in the Notice of
Motion that she was prevented from appearing before the Court due to
medical reasons. Secondly, the medical papers pertain to the date
much prior to the service of writ of summons. Therefore, medical
papers are not helpful to the defendant for condonation of delay.
8. It is the case of the plaintiff that the defendant has not
explained the delay of each day, which is settled position of law. As per
the case of the defendant, she was away from home till 20.02.2018. The
Notice of Motion came to be filed on 26.02.2018. Considering the
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amount of delay, it appears that there was no negligence on the part of
the defendant
9. It is clear that the daughterinlaw of the defendant should
have informed her about the envelope on phone. That did not happen.
The defendant appear before the Court within limitation even after
getting knowledge of writ of summons. In the circumstances, the
plaintiff needs to be compensated for delay caused by the defendant by
way of payment of cost. The reason given by the plaintiff that she was
not present in the home is in my considered opinion sufficient to
condone the delay subject to the payment of cost. Accordingly, I answer
point No. 1 in the affirmative and proceed to pass following order:
O R D E R
1. Notice of Motion No. 895 of 2018 is allowed
subject to the payment of cost of Rs.1,000/ by the
defendant to the plaintiff.
2. On payment of cost, the delay is condoned and
the appearance of defendant may be taken on
record and the plaintiff shall take further steps in
the proceedings.
3. Notice of Motion No.895 of 2018 stands
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 25.08.2021 Gr.Mumbai.
Dictated on : 25.08.2021
Typed on : 25.08.2021
Signed on : 25.08.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.08.2021 AT 5.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
25/08/2021
Judgment/Order signed by P.O. on 25/08/2021
Judgment/Order uploaded on 27/08/2021
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