Final Order 1

Order Details: Notice of Motion
Pdf Text: Exe. Appln No.198/2019 Order in N/M No. 1112 of 2020
MHCC010031222020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1112 OF 2020.
IN
EXECUTION APPLICATION NO.198 OF 2019.
IN
Suit No.2227 OF 2017.
M/s. Dev Blessings Textiles Pvt. Ltd. … Applicant/
Defendant.
In the matter between -
M/s. Parekh Sales Corporation. …Plaintiff
V/s.
M/s. Dev Blessings Textiles Pvt. Ltd. ...Defendant.
Appearance:
Adv. Mr. Rudra Dani i/b Shukla and Associates for Plaintiff/DH.
Adv. Pankaj Shah for JD/Defendant.
CORAM : HER HONOUR JUDGE
SMT. ASHWINI V. KASTURE.
(C.R.No.59)
DATE : 01st October, 2024.
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ORDER
The defendant has taken out present Notice of Motion with
prayer (i) to condone delay of about one year, three months and six
days in taking out the present Notice of Motion,(ii) to set aside the ex-
parte decree dated 26.11.2018 (iii) to allow the defendant to file its
written statement in the present suit, (iv) to set down the present suit
for hearing on such date and (v) to stay the effect, execution and
operation of the ex-parte decree passed in present suit.
2. It is the contention of the Ld. advocate for defendant
that in the above mentioned suit, this Court passed an ex-parte Decree
dated 26.11.2018. After passing of the said ex-parte decree in the above
matter, the plaintiff has taken out Execution Application No. 198 of
2019 to execute the said ex-parte decree dated 26-11-2018 passed in
the above matter. The plaintiff has filed the above false and frivolous
suit in this Court. The plaintiff has, with ulterior motive and malafide
intention, deliberately and purposely mentioned the wrong address of
the defendant as under :
“G4, Manratna Business Park,
Tilak Road, Behind State Bank of Patiala,
Ghatkopar (East), Mumbai – 400 077.”
4. The defendant-applicant states that it appears that after the
filing of the above false and frivolous suit in this Court, the plaintiff had
served the Writ of Summons, issues in the above matter, at the
aforesaid wrong address of the defendant. After serving the Writ of
Summons at the wrong address of the defendant, the plaintiff has
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snatched away an ex-parte Decree from this Court in the above matter.
The plaintiff had taken the said premises i.e. G4 Manratna Business
Park on leave and license basis and carried on its business there up to
January, 2017. The defendant shifted its office from the said address at
G4 Manratna Business Park to its new address at 101, Bhaveshwar
Market with effect from January, 2017 and the defendant has been
carrying on its business at its said new address at 101, Bhaveshwar
Market till date. The plaintiff was throughout aware of the old address
as well as the present new address of the defendant and in spite of
knowing the new address of the defendant, the plaintiff deliberately
served the Writ of Summons at the said old address of the defendant
with ulterior motive that the defendant should not get the Writ of
Summons. The plaintiff is aware of the correct address of the defendant
as under :
“101, Bhaveshwar Market,
M.G.Road, Near Pooja Hotel,
Ghatkopar (East), Mumbai – 400 077.”
5. The fact that the plaintiff is aware of the correct address of
the defendant, as mentioned, here-in-above, is clear from the Ledger
Account maintained by the defendant in its regular course of business,
reflecting the above correct address of the defendant. The defendant
has not been served with the Writ of Summons in the above matter. This
is fit and proper case and it is just and convenient that this Court may
be pleased to set aside the ex-parte Decree dated 26-11-2018 passed in
the above matter. The defendant say and submit that the defendant has
valid defences on merits and if the defendant is afforded a fair and
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reasonable opportunity to contest the claim of the plaintiff in the above
matter, the defendant has bright chance and is likely to succeed in the
above matter on merits.
6. It is the further contention of the defendant-applicant that
no prejudice would be caused to the plaintiff, if any of the reliefs asked
for in the present Notice of Motion, is granted. On the other hand, if
such reliefs are not granted, then, the defendant will suffer grave and
irreparable harm, losses injury and prejudice. The balance of
convenience lies in favour of the defendant. In the aforesaid
circumstances, defendant-applicant prayed to stay the effect, operation
and execution of the ex-parte Decree dated 26-11-2018 and to allow the
defendant to file its written statement along with the Counter Claim in
the above matter.
7. According to defendant-applicant, the bailiff of office of Sheriff of
Bombay handed over to the defendant copy of Warrant of Attachment
on 11.02.2020. Therefore, the date of knowledge of the above suit and
proceedings including the ex-parte Decree is 11-02-2020. The present
Notice of Motion is taken out by the defendant within 30 days from the
date of knowledge and therefore, the present Notice of Motion is taken
out within 30 days and the same is in time. However, in any event, this
Court comes to a conclusion that the ex-parte Decree was passed on 26-
11-2018, hence, the present Notice of Motion is delayed, then in such
an event, defendant-applicant prayed to condone the delay of one year,
three months and six days caused in taking out of the present Notice of
Motion in the interest of the justice.
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8. It is submission of Ld. advocate for plaintiff that the present
application does not meet the requisition of Order IX Rule 13 of the
Code of Civil Procedure, 1908. The Writ of Summons was duly served
upon the applicant by a bailiff of Sheriff of Mumbai. The remedy is a
First Appeal and not an application under Order IX Rule 13 and thus,
the present application deserves to be dismissed with costs. On 2nd
August, 2017 the Decree Holder filed the present suit under Section 55
of the Sale of Goods Act, 1932 against the Applicant for recovery of sum
of Rs.1,90,709/- (Rs. One Lakh Ninety Thousand Seven Hundred Nine
only), being the price of the goods sold, supplied and delivered by the
Decree Holder to the applicant. On issuance of writ of summons, the
Decree Holder lodged the duplicate Writ of Summons along with true
copy of plaint with all exhibits with office of Sheriff of Mumbai for
service upon the applicant at its registered address as mentioned in the
cause title of the plaint and as more particularly mentioned in the print
of Applicant’s company as available with the Registrar of Companies.
On 10th October, 2017 Bailiff of Sheriff of Mumbai along with one Mr.
Rajesh Patel, representative of Decree Holder went to serve Writ of
Summons along with true copy of Plaint upon applicant where they
came to know that the applicant office was shifted to H & O Gandhi
Market, M.G.Road, 1st Floor, Ghatkopar(East), Mumbai – 400 077. Then
the Bailiff of Sheriff of Mumbai and Mr. Rajesh Patel went to serve the
applicant at its new address. At the said address, one Pankaj Bhimani,
who claimed to be the owner of the applicant’s company accepted the
service of writ of summons. A Bailiff report to that effect was exhibited
to the joint Affidavit of service dated 30th October, 2017. The applicant
is duly served however inspite of service, the applicant choose not to
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appear before this Court and thus, this Court was pleased to proceed
further and pass an order and decree against the applicant on 26th
November, 2018. On 28th March, 2019 the Decree Holder through its
Advocate issued a demand notice upon the applicant to comply with
the Decree of this Court. The applicant at all time had knowledge about
the present suit and even on this count, the present Notice of Motion is
liable to be dismissed with compensatory costs. There is no procedural
and/or jurisdictional erred on part of this Court in passing the subject
Decree against the Judgment debtor and even on this Court and present
application is deprived of any merits, both, de jurie and de facto.
Therefore, the Ld. Advocate for defendant prayed that present Notice of
Motion is dismissed with compensatory cost.
6. Perused the Notice of Motion and the documents filed
along with it. Heard the Ld. advocate for both the sides. It is the
contention of the defendant-applicant that the writ of summons was not
served to him. Hence he could not be able to remain present before this
Court and therefore, exparte decree was passed against him. On the
other hand, according to the plaintiff bailiff of Sheriff of Mumbai along
with one Mr. Rajesh Patel, representative, of Decree Holder went to
serve Writ of Summons along with true copy of Plaint upon defendant-
applicant where they came to know that the office of defendant-
applicant was shifted to H & O Gandhi Market, M.G.Road, 1st Floor,
Ghatkopar(East), Mumbai – 400 077. Then the Bailiff of Sheriff of
Mumbai and Mr. Rajesh Patel went to serve the applicant at its new
address. At the said address, one Pankaj Bhimani, who claimed to be
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the owner of the applicant’s company accepted the service of Writ of
Summons. This itself shows that the Writ of Summons was not served to
the defendant-applicant personally. The record also shows that the
plaintiff was aware of the address of defendant-applicant as, 101,
Bhaveshwar Market, M.G.Road, Near Pooja Hotel, Ghatkopar (East),
Mumbai – 400 077. Inspite of that the plaintiff has serve the Writ of
Summons at G4, Manratna Business Park, Tilak Road, Behind State
Bank of Patiala, Ghatkopar (East), Mumbai – 400 077. Hence, the
Notice of Motion deserves to be allowed. Therefore, the following order
is passed,
ORDER
1. The Notice of Motion No.1112of 2020 is allowed.
2. The Order dated 26-11-2018 in Suit No.198 of 2019 is set aside
and the suit is restored to the files subject to costs of Rs.15,000/-
(Rs. Fifteen Thousand Only) to be paid to the plaintiff.
3. The defendant shall deposit the above costs within four weeks of
this order.
4. After the compliance of above costs, the Suit No.198 of 2019 be
restored under its original caption and till its decision the
execution application is stayed.
5. The Notice of Motion No.1112of 2020 is disposed of
accordingly.
(A.V. Kasture )
Judge
Dt. 01/10/2024 City Civil Court, Gr. Mumbai
Declared on : 01/10/2024
Direct Typed on : 01/10/2024
Checked & Signed on: 03/10/2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.10.2024 at 03.40p.m. Mrs. Pushpa R. Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ Smt. A. V. Kasture,
(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 01.10.2024.
Order signed by P.O. on 03.10.2024
order uploaded on 03.10.2024
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