Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/Summons 656/19
MHCC010033042019
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 656 of 2019
IN
SUMMARY SUIT NO. 1344 OF 2018
Ramesh Vardhan - HUF
Through Karta, Ramesh B. Vardhan
Age: 56 Occupation : Business
Havin Office at 801,8th Floor,
Sumer Saraswati Bldg, Owendunn
Road, Gamdevi, Mumbai - 400007. ... Plaintiff
VERSUS
Mr. Sanjay Seth
Sole Proprietor, Seth Metal
Age: about 37 years,
Occupation : Business Having address
at13th Floor, 1302 Darshan Pride,
Tulsiwadi, Near RTO Tardeo Road,
Mumbai - 400034. ... Defendant
Appearances:-
Ld. Advocate 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 11 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 the summons for judgment was served on the defendant on
26.02.2019. However, for the reasons as mentioned in para 3 and 4
of the affidavit of chamber summons, the defendant could not file
to leave to defend. Therefore, delay of 11 days was caused to file
the leave to defend. Hence, he requested to condone the delay and
allow to file the leave to defend on record.
4. On the other hand, the Ld. Advocate on behalf of the
plaintiff argued that, despite opportunity, the defendant did not file
Vakalatnama on record. Therefore, though the summons for
judgment was served on 26.02.219, due to non filing of
Vakalatnama the delay is more. The present chamber summons is
not maintainable as it was filed without Vakalatnama. No proper
reasons are mentioned for condonation of delay. Leave to defend is
not filed with the chamber summons. The main purpose of the
defendant is to delay the matter. Therefore, she requested to reject
the chamber summons.
5. Having perused the record, it reveals that earlier
chamber summons No.1743/2019 on behalf of the defendant has
been allowed by this Court by order dated 20.02.2020 and
Vakalatnama of the defendant was accepted on record subject to
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certain costs. It is not disputed that the defendant has paid the
same costs to the plaintiff. Resultantly, Vakalatnama validly
accepted on record. In fact, the defendant had appeared much
prior to that merely Vakalatnama of the Advocate was not filed on
record. In any case, now, the Vakalatnama has been on record. It
is not disputed that the summons for judgment was served on the
defendant on 26.02.2019, it cannot be expected from the
defendant to file reply before 26.02.2019, i.e. before service of the
summons for judgment. After service of summons for judgment
within 10 days the defendant was required to file the leave to
defend/reply. However, the defendant filed present chamber
summons. It is not in dispute that the leave to defend was ready
and affirmed on 19.03.2019. Though at that time the Court did not
accept the same on record, today, on the directions given by this
Court, the defendant immediately tendered leave to defend which
was affirmed and ready long back on 19.03.2019. Thus, leave to
defend was ready on 19.03.2019, though for any reason it was not
tendered or accepted on record. It may be that, unless the present
chamber summons is allowed, the Court may not have thought it fit
to accept the leave to defend on record. But that does not make
any difference, because admittedly, the leave to defend was
affirmed and ready to be filed on 19.03.2019.
6. As already mentioned the summons for judgment was
served on the defendant on 26.02.2019, the defendant was
required to file leave to defend within 10 days. However, the same
was affirmed and ready and the present chamber summons was
filed on 20.3.2019. Thus, there is delay of about 11 days only. The
defendant stated on affidavit that, he had been to his native place
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and when came back his kids were ill and he had to take care of
them also. He was also required to take care of his old mother. He
himself had certain blood pressure issue and was required to take
rest. For these reasons, he could not contact his Advocate.
Meanwhile also there were lots of holidays and his advocate was
not avaialble due to prior commitments. These reasons being given
on the affidavit are acceptable particularly, when the same are not
rebutted by way of affidavit. In this background and considering
the quantum of delay, it is just and proper to allow the chamber
summons and condone delay, of course subject to costs. Hence,
order as follows is passed:-
ORDER
1. Chamber Summons No. 656 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
Thousand 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 : 16.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 16.02.2021 5.15 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 16.02.2021
JUDGMENT /ORDER uploaded on 16.02.2021
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