Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.92218
CNR No. MHCC010031522018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.922 OF 2018
IN
SUMMONS FOR JUDGMENT NO.521 OF 2014
IN
SUIT NO.7147 OF 2003
(HIGH COURT SUIT NO.3167 OF 2003)
M/s. Subhash Knitting Industries and Ors. ...Plaintiffs.
V/s.
Sohail Noorani ...Defendant
Appearances:
Ld. Adv Shveta for the plaintiffs.
Ld. Adv Shashank Borade for the defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 22nd OCTOBER, 2018.
ORDER
1. The defendant has taken out this notice of motion for condoning
delay in filing reply to summons for judgment.
2. Defendant's contention is that copy of summons for judgment was
served on the Advocate for defendant in the month of November, 2014.
However, by that time his mother was admitted in the hospital and the
said summons for judgment was gone unnoticed and misplaced. He
had appointed lawyer to represent him in the aforesaid suit but
subsequently due to serious illness of his mother as well as poor
financial condition he could not able to follow up the aforesaid suit
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diligently as well as his Ld. Advocate on record was also could not keep
the track of the suit regularly therefore, suit proceeded without his
appearance as well as his Advocate. Thereafter, he took the search of
matter and obtained papers and proceedings of the present matter and
thereafter, appointed another Ld. Advocate to represent him before this
Court. He further contended that there were other proceedings arising
out of section 138 of the Negotiable Instrument Act, between the same
parties and the same were lying with his other Advocate and it took
time for him to collect all papers and prepare reply. Hence, there is a
delay in filing reply to the summons for judgment and the same is
neither deliberate nor intentional. The Court be pleased to give him an
opportunity to file his affidavit in reply to summons for judgment and
he is permitted to defend the suit on merits. He is having good case on
merits and if did not get an opportunity to place on record the true and
correct facts of the case, the great prejudice will cause to him and he
will suffer irreparable loss which cannot be compensated in terms of
money. With this, prayed condoning delay in filing reply to summons
for judgment and granting permission to file reply to summons for
judgment.
3. The plaintiff by filing reply objected the notice of motion.
4. His contention is that initially suit was filed before the Hon'ble
High Court which came to be decree exparte on 13.02.2004. Then, the
defendant has taken out Notice of Motion No.2264 of 2004 for setting
aside expare decree. The said notice of motion was allowed by order
dated 11.10.2004 subject to deposit of Rs.1,50,000/ plus cost of the
suit Rs.2,000/. Meanwhile, Mrs. Kamlavati Mehra plaintiff no.3 died
on 30.01.2005 and it was decided by the existing partners that Mrs.
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Superna Dhiraj Mehra be added as partner of Subhash Knittings Ltd.,
Partnership Firm. Accordingly, a Partnership Deed was executed on
10.03.2005. It further contended that after the amendment in the
provision of sections 4 and 6 of Bombay City Civil (Amendment) Act,
2012, suit was transferred to City Civil Court. It further contended that
on 10.06.2013 City Civil Court after perusing the records and
proceedings noted that the order of exparte dated 13.02.2004 was
decreed against the defendant and Notice of Motion No.2262 of 2004
was taken out by the defendant was allowed and the decree dated
13.02.2004 against the defendant was set aside on 11.10.2004 with a
condition that an amount of Rs.1,50,000/ alongwith a cost of
Rs.2,000/ to be deposited within a period of six weeks from the date of
the order. However, no documents were tendered by the defendant
before the Court indicating that the defendant has deposited the said
amount in the Hon'ble Court. On such perusal and observation the
Hon'ble Court was therefore, pleased to reserve the aforesaid matter for
order on 29.06.2013. The defendant on 29.06.2013 had produced the
receipt of deposit of the aforesaid amount of Rs.1,50,000/ plus cost of
Rs.2,000/ in the Hon'ble Court.
5. Plaintiff's further contention is that meanwhile Mr. Subhash
Mehra plaintiff no.2 died on 22.02.2013. Plaintiff took out chamber
summons for change of address of Partnership Firm and also for
deleting the names of plaintiff nos.2 and 3.
6. Plaintiff's further contention is that on 05.12.2014 plaintiff has
filed registered summons for judgment and also affidavit of service of
summons for judgment. As per affidavit of service copy of summons for
judgment and affidavit in support was served upon Advocate for
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defendant by hand delivery on 20.11.2014. Thereafter, Advocate for
defendant sought for adjournment for filing their reply to summons for
judgment and the matter was adjourned to 06.01.2015. It further
contended that matter has time and again appeared on board before the
Court for the defendant to file their reply to summons for judgment.
The defendant have under one pretext or the other and in order to
delay the proceedings before the Court on each and every date they
have sought adjournment for filing reply to summons for judgment
which was strongly opposed by the plaintiff. After perusing the record
and on being pleased that the defendant is unwilling to file reply, the
Hon'ble Court was pleased to keep the aforesaid matter for summons
for judgment for hearing on 11.03.2015. Then, the defendant as a
delaying tactics appointed another Advocate and he filed vakalatnama
on 03.02.2016 before Court Room No.56.
7. Plaintiff's further contention is that on many occasions the matter
appeared before the Court for argument on summons for judgment but
nobody appeared for defendant therefore, matter was reserved for order
on summons for judgment on 20.11.2017. Then, the defendant came to
know that matter is reserved for order, he immediately taken out notice
of motion on 07.02.2018 knowing that if the defendant has not applied
for leave to defend, the plaintiff will be entitled for judgment forthwith
under Order XXXVII Rule 3(6)(a) of the Civil Procedure Code. It
further contended that defendant failed to file reply to summons for
judgment within 10 days from service of summons. Defendant was
aware of the present proceedings and despite of that they did not take
any steps on their behalf. This lethargic attitude of the defendant is
also evident from the fact that even after filing vakalatnama by earlier
Advocate and present Advocate, no efforts were taken by the defendant
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to file his reply. With this, plaintiff prayed for dismissal of notice of
motion.
8. I have heard Advocate for both the parties.
9. Advocate for defendant submitted that there is no intentional
delay in filing reply to summons for judgment. The defendant has
deposited an amount as per directions of the Hon'ble High Court for
setting aside exparte decree. He submitted that the defendant has to
defend the suit, if delay is not condoned, it will suffer great hardship to
the defendant.
10. Advocate for plaintiff submitted that admittedly, exparte decree
was set aside and defendant was allowed to deposit the amount of
Rs.1,50,000/ plus Rs.2,000/. He further submitted that summons for
judgment was served in the month of November, 2014 on defendant
and thereafter, he has taken several adjournments for filing reply to
summons for judgment. However, he has not filed reply to summons
for judgment. He further submitted that defendant has not produced
any documents in support of notice of motion to prove that his mother
was ill and admitted in the hospital. On the contrary it contended in
notice of motion, summons for judgment was gone unnoticed and
misplaced. It shows that defendant himself was negligent so, delay
cannot be condoned. I find that already exparte decree was set aside,
on payment of cost of Rs.1,50,000/ which was deposited by the
defendant. Summons for judgment was served on defendant in the
month of November, 2014. However, he has not filed reply to
summons for judgment. Then, he changed his Advocate as his earlier
Advocate could not follow the suit or to keep the track of the suit so, the
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defendant changed his Advocate and then, he immediately filed notice
of motion for condoning delay in filing reply to summons for judgment.
I find that suit is for recovery of amount and already exparte decree is
set aside so, to give a fair chance to file reply to summons for judgment,
delay is condoned and defendant is permitted to file reply to summons
for judgment on costs of Rs.5,000/ deposited to the District Legal
Services Authority, Mumbai. With this, I proceed to pass the following
order:
O R D E R
1. Notice of Motion No.922 of 2018 is allowed.
2. Defendant is permitted to file reply to summons for judgment on
costs of Rs.5,000/ deposited to the District Legal Services Authority,
Mumbai. The defendant is to file reply to summons for judgment on or
before next date.
3. Notice of Motion No.922 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 22/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 22/10/2018
Transcribed on : 22/10/2018
Signed on : 22/10/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
25.10.2018 5.14 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
22.10.2018
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JUDGEMENT /ORDER signed by
P.O. on
22.10.2018
JUDGEMENT /ORDER uploaded
on
25.10.2018
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