Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/Summons 657/19
MHCC010033032019
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 657 of 2019
IN
SUMMARY SUIT NO. 1403 OF 2018
Mullti Marketing
Through Sole Proprietor
Ramesh B. Vardhan
Age: 56 years Occu: Business
Having Office at 320, Maulana
Azad Road, Dunccan Road,
Mumbai - 400004. ...Plaintiff.
VERSUS
Seth Metal
Through Sole Proprietor Sanjay Seth
Age: about 37 years,
Occupation : Business, Having address
at 13th Floor, 1302 Darshan Pride,
Tulsiwadi, Near RTO Tardeo Road,
Mumbai - 400034. ... Defendant
Appearances:-
Ld. Advocate Ms. Priti Gada for the plaintiff.
Ld.Advocate Mr. Ram Kutwal for the Defendant
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 15th FEBRUARY, 2021
O R D E R
1. Vide this Chamber summons, the defendant requested
to condone the delay of 33 days in filing leave to defend and to
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accept the leave to defend on record. The plaintiff resisted the
chamber summons.
2. Heard the Ld. Advocates on behalf of both the parties.
Perused the record.
3. The Ld. Advocate on behalf of the defendant argued that
though the summons for judgment was served on the defendant on
04.02.2019. However for the reasons as mentioned in para 2 to 5
of the affidavit of chamber summons, the defendant could not file
the leave to defend. Therefore, delay of 33 days has been caused to
file the leave to defend. Hence, he requested to allow the chamber
summons and condone the delay by accepting the leave to defend
on record.
4. On the other hand, the Ld. Advocate on behalf of the
plaintiff argued that, the delay is not of 33 days but of about two
years. No sufficient cause has been mentioned. The defendant did
not file Vakalatnama within time and without Vakalatnama this
chamber summons is not maintainable. The leave to defend though
affirmed on 19.03.2020, the same is not enclosed to the chamber
summons. The main purpose of the defendant is to delay the
matter. Therefore, she requested to reject the chamber summons.
5. It appears that earlier chamber summons
No.1744/2019 was allowed and the defendant was directed to file
Vakalatnama on record subject to certain costs. It is not disputed
that the defendant has paid the same costs to the plaintiff.
Resultantly, Vakalatnama has been on record validly. In fact, the
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defendant had appeared much prior to that, merely there was delay
to file Vakalatnama. Since, the Vakalatnama has already been
accepted on record, the same issue cannot be agitated again. In
any case the summons for judgment has been served on the
defendant on 04.02.2019, thereby the limitation of 10 days for
filing leave to defend has to be computed from 04.02.2019 and not
from the period prior to that. It is also apparent that though the
chamber summons has been filed on 20.02.2019, the leave to
defend was not enclosed to it. However, it is not disputed that the
leave to defend was affirmed and ready on 19.03.3019. It is
probable that till the chamber summons is not allowed, the
Presiding Officer or the defendant may not have thought it proper
to accept or file the leave to defend on record. Otherwise there is
no reason for the defendant to not to file the leave to defend with
the chamber summons although admittedly, it was affirmed and
ready on 19.03.2019. However, the defendant today on being
directed by this Court immediately tendered the leave to defend
which was already ready on 19.03.2019. As such, the leave to
defend is on record but it has been yet not accepted for pendency
of the present chamber summons.
6. As already mentioned the summons for judgment was
served on defendant on 04.02.2019, the defendant ought to have
filed reply/leave to defend within 10 days. However, the chamber
summons was filed and the leave to defend was ready and affirmed
on 19.03.2019. Thus, there is delay of about 33 days in filing the
same. The reasons given by the defendant are that he himself was
ill, he had also been to his native place and when came back his
kids were ill and he had to take care of them also. He was also
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required to take care of his old mother and also in between there
were lots of holidays and his advocate was not avaialble due to
prior commitments. Therefore, he could not file leave to defend.
These reasons being given on the affidavit are acceptable
particularly, when the same are not rebutted by way of affidavit. In
this back ground and considering the quantum of delay, it is just
and proper to condone delay, of course subject to costs. Hence,
order as follows is passed:-
ORDER
1. Chamber Summons No. 657 of 2019 is allowed as under.
2. Leave to defend filed on behalf of the defendant be
accepted on record subject to costs of Rs. 2000/- (Rs. Two
Thousant only) to be paid to the plaintiff by the defendant.
3. The Chamber Summons is disposed of accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 15.02.2021 City Civil Court, Mumbai
Dictated on : 15.02.2021
Transcribed on : 16.02.2021
Signed on : 17.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 17.02.2021 12.05 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
15.02.2021
JUDGMENT /ORDER signed by P.O. on 17.02.2021
JUDGMENT /ORDER uploaded on 17.02.2021
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