Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 107418 Summary Suit No.760998
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1074 OF 2018
IN
SUMMARY SUIT NO.7609 OF 1998
(CNR NO. MHCC010034912018)
Armour Polymers Limited …. Plaintiff
Versus
M/s. Salpra Pharmaceuticals &
Chemicals & Others ….Defendants
Appearance:
Shri. M.H. Rawal, Advocate for plaintiff.
Shri. Shashank Fadia, Advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 31/08/2019
ORDER
1) The Notice of Motion is filed by the defendant No.1
and 2 to allow them to file written statement and condone the
delay of 180 days to file the Notice of Motion and set aside
decree dated 10/06/2015. The Notice of Motion is supported by
affidavit of Shri. Santosh Gulwadi, the defendant No.2. He on
oath stated that the summary suit was filed by the plaintiff before
the Hon'ble High Court for recovery of Rs.13,42,008.90/. The
defendant No.1 filed Vakalatnama through Advocate Smt. Asha J.
Bhuta. Thereafter, the plaintiff took out the Summons for
Judgment No.586/98. He filed affidavit in reply on 08/12/1999.
The Summmons for Judgment was decided by Hon'ble Justice
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Shri. S. Radhakrishnan on 17/01/2000. The leave was granted to
the defendant. The defendant was directed to file the written
statement within six weeks. Advocate for defendant never
prepared written statement and never informed him that it is to
be filed within six months. She only informed that unconditional
leave has been granted by the court. Thereafter, the matter was
transferred to City Civil Court, Bombay. His advocate was on
record but advocate never informed him about the progress of
the matter and on 10/06/2015 the Exparte decree was passed.
The defendant has good case on merits.
2) The defendant stated that the premises being 5,
Hirak Society, Irla Bridge, S.V. Road, Mumbai 400 056 since last
20 years along with his family members. It was only for the sake
of convenience above address was shown but it exclusively
belongs to M/s. Jyotsna K. Shah, the motherinlaw of the
defendant. Shri. Sunil K. Shah is brotherinlaw and Smt. Shital
Santosh Gulwadi is his wife. The share certificate under Order 21
Rule 22 of Code of Civil Procedure on 09/08/2017 and he came
to know about the Exparte decree. The defendant was in the
United States of America from 30/08/2017 to meet his son and
came back on 14/09/2017. The warrant of judgment under
Order 21 Rule 43 and 54 of Code of Civil Procedure was issued.
He was present at the time of the said attachment and informed
the Bailiff that moveable and immoveable of the premises belongs
to his motherinlaw Smt. Jyotsna K. Shah, his brotherinlaw
Shri. Sunil K. Shah and his wife Smt. Shital. The Bailiff informed
that they have to attach moveable and immoveable and if he
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aggrieved by the same then he has to take out appropriate steps.
3) In case the Exparte decree is not set aside the
defendant will suffer irreparable loss. Hence, prayed to allow the
Notice of Motion.
4) The plaintiff filed reply through affidavit of Minal
Bhosale, authorised officer of the company. He on oath sated that
the contents of the Notice of Motion is false, vexatious, ulterior
motive, malafide intention. Hence, prayed to dismiss with cost.
5) Summary suit is filed in the year 1998. the
unconditional leave was granted to the defendant on 17/01/2000
and direction was given to the defendant to file written statement
within six weeks. The defendant failed to file written statement.
The Notice of Motion was filed by the defendant No.3 to set aside
the order dated 20/08/2009. The delay to file written statement
of the defendant No.3 was allowed subject to cost. The
defendants were given opportunity to file written statement and
cross examine the plaintiff's witness. But the defendant remained
absent. Therefore, the judgment was passed on 10/06/2015 and
order was passed:
1. “Suit is hereby decreed against defendant No.1 and 2
with costs as under;
a) Defendant No.1 & 2 shall jointly and severally pay the
amount of Rs.13,42,008.80 ps. to the plaintiff within
two months from the date of this order along with
interest at the rate of 9% p.a. on the principal sum of
rs.8,94,672.60 ps. From the date of suit i.e. from
13.12.1997 till realization of the decreetal amount.
2. Suit is hereby dismissed against defendant No.3.
3. Defendant No.3 to bear its own costs.
4. Decree be drawn up accordingly.”
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6) Advocate for plaintiff issued a letter dated
10/12/2015 to the defendant No.1 and 2 informing the order
dated 10/06/2015 and called upon them to pay the decreetal
amount. The defendant failed to pay the amount even though
they received the said letter. The plaintiff has denied the contents
of the Notice of Motion in toto. There is no merit in the Notice of
Motion. No explanation for condonation of delay. Hence, prayed
to dismiss the Notice of Motion.
7) Heard Advocate Shri. M.H. Rawal for plaintiff and
Shri. Shashank Fadia for defendant.
8) To decide the Notice of Motion I have called record
and proceedings of summary suit No.7609/98. On perusal of the
record the issues were framed on 02/02/2013. The defendant
No.3 filed written statement. Therefore, issues were framed on
02/02/2013 at Exh.5. The roznama shows that the defendant
No.1 and 2 did not appeared nor they filed written statement as
per the unconditional leave granted to the defendant on
17/01/2000 in Summons for Judgment No.586/98. The suit was
transferred in the year 2012. The roznama does not show any
notice was issued from City Civil Court to the defendant. The
defendant in the Notice of Motion stated that he was not told by
his earlier advocate that the suit is transferred and they have to
file written statement. The suit proceeded further after the
defendant No.3 filed written statement. The issues were framed.
The plaintiff adduced the evidence. The suit is Exparte against
the defendant No.1 and 2. They failed to file written statement
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even though unconditional leave was granted.
9) The plaintiff in reply stated that he issued letter
dated 10/12/2015 to the defendant No. 1 and 2 informing the
judgment passed in the suit but the copy of the letter along with
the acknowledgment receipt is not filed by the plaintiff with the
reply.
10) The suit was filed by the plaintiff in the year 1998.
Admittedly, the unconditional leave was granted to the defendant
but he failed to appear and file the written statement. On perusal
of the summary suit No.7609/98 the Hon'ble High Court on
20/08/2009 passed order that on 17/01/2000 unconditional
leave to the defend the suit was granted to the defendant. No
written statement has been filed. Therefore, suit to be listed for
Exparte decree. Though the suit was transferred to City Civil
Court , but the record does not show that the notice was issued to
the defendant No.1 and 2 and the suit proceed further.
11) The defendant has stated that he came to know
about the Exparte decree on 09/08/2017. However, he had been
to United States of America to meet his son and when he came
back there was another warrant of attachment under Order 21
Rule 43 and 54 of Code of Civil Procedure on 02/01/2018. He
was present at that time. This Notice of Motion is filed on
04/04/2018. Even after knowledge of the decree on 09/08/2017
the defendant did not take steps. The defendant in the Notice of
Motion only stating that he tried to contact his earlier advocate
and there was no response from the earlier advocate. This
contention is repeated in the Notice of Motion. Considering the
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above facts though it is presumption that the defendant came to
know about the decree on 09/08/2017 he should have been
diligent to proceed with the case with the steps to set aside.
However, he went further to United States of America to meet his
son and when warrant of attachment received he returned. That
too there is delay to file the Notice of Motion. The unconditional
leave was granted to the defendant in the year 2000. However,
the notice is not issued to the defendant when suit is transferred.
Therefore, in the interest of justice the defendant is entitled for
setting aside the decree. However, the defendant to pay the
amount of decree till date and cost for delay to the plaintiff. On
this condition the decree can be set aside and the defendant can
be given an opportunity to contest the suit. Hence, pass following
order:
ORDER
1 The Notice of Motion is allowed on
payment of cost of Rs.20,000/ (Rs.
Twenty Thousand only) to the
plaintiff.
2 The decree dated 10/06/2015
against the defendant No.1 and 2 is
set aside on deposit of the decreetal
amount along with the interest till
date within one month from the date
of the order failing which the Notice
of Motion shall stand dismissed.
3 On deposit of the decreetal amount
by the defendant the same be kept in
fixed deposit in Nationalised Bank.
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4 On payment of the above cost and
decree within the above period the
defendant is allowed to file written
statement within one month
5 Accordingly, the Notice of Motion is
disposed of.
(S.S. Nagur)
Date : 31/08/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 31/08/2019
Transcribed on : 11/09/2019
Signed on : 11/09/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
16/09/2019 & 11.47 a.m. : Mrs. Shobha Ashok Shekade
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 31/08/2019
Order
Judgment/Order signed by the P.O. on : 11/09/2019
Judgment/Order uploaded on : 16/09/2019
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