Final Order 1

Order Details: Notice of Motion
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MHCC010031382020
IN THE COURT OF JUDGE CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 1113 OF 2020
IN
SUMMARY SUIT NO.573 OF 2018
Shreenath Enterprises & Anr. …Applicants
In the matter of
Swastik Oil Products Mfg.Co.Pvt.Ltd …Plaintiffs
V/s.
1.Shreenath Enterprises & Anr. …Defendants
Appearance :
Ld. Adv. Ms. Seema Chopda for plaintiff.
Ld. Adv. Dr.Sunik Gupta for defendants.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 06/08/2022.
ORDER
This Notice of Motion is taken out by the defendants for
setting aside exparte Decree dated 04/11/2019.
2. Perused Notice of Motion and Affidavit filed in its support.
Heard Ld Adv Dr. Sunik Gupta for the defendants. He submits that
defendant No.2 was not properly served with the Writ of Summons. He
further submits that copy of decree passed in this suit was sent to
defendant No.2 in the envelope of Union Bank of India and that has
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been received by the defendant No.2, but not the Writ of Summons. The
copy of said envelope is at Annexture-A.
3. Dr. Gupta further submits that Affidavit of Service filed in
the suit is not by the officer of the Court but by the Clerk of the
advocate appearing for the plaintiff. He suspects tampering of the
envelope, so as to show the delivery of Writ of Summons. Dr. Gupta
further disputes the correctness of the service affidavit and the
documents filed along with it. He further submits that defendant No.2
was not at all aware of the proceeding pending before this Court. When
he received one envelope of Union Bank of India, then only he came to
know about the decree passed in this Court. Thereafter, defendant No.2
took out certified copies of the documents and filed the present Notice
of Motion without delay.
4. Dr. Gupta further submits that suit filed by the plaintiff for
recovery of amount is not at all maintainable in summary form. He
submits that neither invoice nor delivery chalan of the goods is filed by
the plaintiff. Defendant has good case on merit and therefore, exparte
Decree by set aside so as to afford a chance to contest the suit.
5. Plaintiff has filed reply to the present Notice of Motion and
has objected the same.
6. Ld Adv Seema Chopda for the plaintiff submits that the
defendant No.2 was duly served way back in the year 2018 and
accordingly service affidavit is filed. She further submits that address
mentioned in the title clause is the same which is mentioned on the
envelope of Union Bank of India which has been filed by the defendant
No.2. She further submits that the defendant No.2 is thus duly served
and there is no merit in the contention of the defendant No.2 that they
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were no service at all. She further submits that envelope of Writ of
Summons of defendant No.1 as well as defendant No.2 were prepared
in the office of this Court and were also dispatched in the office of this
Court. By pointing out unserved envelope of defendants, she submits
that copy of entire compilation of the plaint and other documents which
is there for defendant No.1 was also sent to the defendant No.2. Postal
receipt and Online Track Report clearly shows that defendant No.2 is
thus duly served with Writ of Summons.
7. On hearing both the sides and on perusal of documents
placed on record by both the sides, I find that the main issue involved
about service of the Writ of Summons on defendant No.2. On one side
defendant No.2 contends that he was not at all served and on the the
other side plaintiff claims that there was good and valid service of Writ
of Summons.
8. I have gone through the affidavit of service filed on behalf
of the plaintiff. The affidavit reveals that Writ of Summons sent to the
defendant No.1 is returned unserved with endorsement “Left address’’.
Whereas the Writ of Summons sent to the defendant No.2 was not
returned. The postal receipt placed on record along with service
affidavit shows that both the envelopes of Writ of Summons were sent
on 02/07/2018 by this office. Weight of both the envelopes was 2.32
grams. The returned envelope of defendant No.2 which carries the same
weight do contain copy of plaint and its annextures. Naturally the
envelope of defendant No.2 was also containing the same documents
and thus having same weight. The address of defendant No.2 is not
disputed. The Online Track Report of post is on record which shows the
delivery. In the light of this document, I hold that good service of Writ
of Summons on defendant No.2. Hence, the contention of defendant
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No.2 that he was not served with the Writ of Summons is not
acceptable. The defendants stand does not seem to be bonafide and
genuine.
9. From the record it reveals that the
exparte order against
the defendant was passed on 20/010/2018 and the exparte Decree was
subsequently passed on 04/11/2019. The present Notice of Motion is
taken out on 06/03/2020. Thus it means that the present Notice of
Motion filed after almost four months from the passing of
exparte
Decree.
10. Rule 4 of Order XXXVII of Code of Procedure deals with
power of the Court to set aside decree. For setting aside decree, the
Court must be satisfied to the ‘special circumstance’ for doing so. Ld.
Adv for defendant No.2 submits that non service of summons on the
defendant No.2 is itself is a special circumstance to set aside the
exparte
Decree. However, as observed above, this Court is not incline to accept
the contention of defendant no.2 about the non service of Writ of
Summons. Therefore, it is clear that there is no special circumstance
available to set aside the decree.
11. So far as the contention of Adv for defendant No.2 about
the merit of the case, cannot be considered at this stage without special
circumstance shown or proven by defendant No.2. Therefore I am not
inclined to allow the present Notice of Motion, same deserves to be
rejected. At this stage Ld. Advocate for defendant No.2 make submission
as to stay the effect of this order for next four weeks. In view of
observations made in the order, I am not inclined to accept said request.
Hence, the order.
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ORDER
1. Notice of Motion No.1113/2020 stands rejected.
2. Notice of Motion No.1113/2020 is disposed off accordingly.
Date: 06/08/2022 (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai
Court Room No.61
Dictated on: 06/08/2022
Transcribed on: 08/08/2022
HHJ signed on: 08/08/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/08/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
06/08/2022
JUDGMENT/ORDER signed by P. O. on 08/08/2022
JUDGMENT/ORDER uploaded on 10/08/2022
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