Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 1 Combine Order.
MHCC010046762019
Presented on : 30-04-2019
Registered on : 30-04-2019
Decided on : 08-04-2021
Duration : 1 years, 11 months, 8 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1707 OF 2019
AND
APPLICATION (EXHIBIT 4)
IN
COMMERCIAL SUIT NO. 3 OF 2019
Metro Ortem Limited ...Plaintiff
Versus
Maharashtra State Road Transport Corporation ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 8th APRIL, 2021.
Mr. Rajesh Singh, Advocate for Plaintiff.
Ms. P.M.Bhansali, Advocate for Defendant.
COMBINE ORDER
This is a combine order passed below Exh.4 and Notice of
Motion No. 1707/2019. Exh.4 is submitted by defendant for
condonation of delay of 244 days in submission of written statement.
Notice of Motion No. 1707/2019 is submitted by the plaintiff for
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 2 Combine Order.
issuance of temporary injunction under Order 39 Rule 1 and 2 of the
CPC to restrain the defendant from invoking bank guarantee dated
27/04/2018.
2. It is pertinent to note, as arguments from both side has
initiated, learned advocate for defendant submitted pursis vide Exh.6 to
withdraw application Exh.4. It is admitted by learned advocate for
plaintiff that in view of tabulation in Rate Contract para no.17 page
no.82 of the plaint that bank guarantee was valid upto 26/04/2020.
3. This is a suit for recovery of Rs.73,51,817/ with interest at
the rate of 18% p.a.; alongwith recovery of E.M.D. (Earnest Money
Deposit) of Rs.9,56,000/. Plaintiff deals in the business of auto rubber
tubes. Defendant is a Public Road Transport Corporation. In view of
agreement between plaintiff and defendant dated 17/05/2018, plaintiff
has supplied the material as detailed described in plaint to the various
depots of Maharashtra. Accordingly, it is contention of plaintiff that
aforesaid amount is due towards defendant.
4. The genesis of the contractual relations between the parties
is Rate Contract dated 17/05/2018. It was a contract for the period of
27/04/2018 to 26/04/2019. It is not disputed that bank guarantee was
valid till 26/04/2020. In view of specific terms between the parties as
per Rate Contract, the bank guarantee tendered was valued
Rs.30,42,000/.
5. As defendant has submitted pursis vide Exh.6, application
for condonation of delay vide Exh.4 requires to be disposed off. It is
admitted by learned Adv. Rajesh Singh that in view of specific terms
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 3 Combine Order.
mentioned in Rate Contract, bank guarantee expires on 26/04/2020,
therefore Notice of Motion No. 1707/2019 becomes infructuous.
However, learned Adv. Rajesh Singh for plaintiff argued at length and
prayed for specific order. In response, learned Adv. P.M.Bhansali for
defendant argued at length and submits that in view of controversy
between parties in view of writ of summons, the written statement of
defendant requires to be accepted.
6. Considering aforesaid discussion, the material question for
consideration at this juncture is, 'Whether writ of summons is duly
served ?'
7. In response to aforesaid material question about
appropriate service of writ of summons, learned Adv. Rajesh Singh for
plaintiff requested to peruse affidavit of service Exh.2 submitted before
the Court on 22/10/2019 supported with two letters dated 18/04/2019
and 23/04/2019 prepared on the letterhead of Adv. Sunilkumar Karoth
in respect of service of notice alongwith all documents served on legal
branch of MSRTC. It is requested to peruse para no.1 of application
vide Exh.4 submitted by the defendant, wherein it is mentioned that
defendant is served with writ of summons on 18/04/2019, therefore, it
is prayed for condonation of delay.
8. It is replied by Adv. P.M.Bhansali for defendant that ad
interim relief was obtained by the plaintiff on 04/04/2019. On the
scheduled date i.e. 24/04/2019 it was intimated by then advocate for
defendant that copies of the plaint and documents alongwith notice of
motion is not served on defendant, therefore, this Court has granted
time to file reply on notice of motion and written statement. Therefore,
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 4 Combine Order.
it is requested to note that there is no proper service of summons
alongwith plaint and all documents. Hence, it is prayed to accept
written statement.
9. It is not in dispute that there is a mandate of 120 days to
accept written statement of defendant. In reply submitted by plaintiff it
is specifically mentioned in M/s. SCG Contracts India Pvt. Ltd. V/s.
K.S.Chamankar Infrastructure Pvt. Ltd. & Ors. reported in 2019 SCC
OnLine SC 226 that in failure to submit written statement in stipulated
time of 120 days, it will result in forfeiture of right of the defendant to
file written statement.
10. In present set of facts as discussed above, it was directed by
this Court on 04/04/2019 to comply Order 39 Rule 3(a) of the CPC to
serve copy of notice of motion and plaint and all required documents.
On 24/04/2019, it was specifically intimated by then advocate for
defendant that copies of the plaint and documents were not served on
defendant. However, compliance affidavit of Order 39 Rule 3(a) of the
CPC vide Exh.2 is submitted by learned advocate for plaintiff on
22/10/2019. Therefore, there is no proper compliance under Order 39
Rule 3(a) of CPC, on the part of learned advocate for plaintiff.
11. On perusal of legislative intent of Order 39 Rule 3(a) of the
CPC, it is expected to supply the copy alongwith all required
documents. On perusal of both impugned letters on the letterhead of
Adv. Sunilkumar Karoth, it was served on 18/04/2019 and 23/04/2019
when matter was placed before this Court on 24/04/2019. It is
necessary to note, even 24 hours were not provided by the plaintiff to
the defendant to prepare reply. It is material to note, defendant is a
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 5 Combine Order.
Public Road Transport Corporation i.e. MSRTC.
12. On perusal of both letters of Adv. Karoth dated
18/04/2019 and 23/04/2019, it is specifically mentioned that “I hereby
serve upon you a copy of the order dated 04April, 2019.” In enclosure
it is not mentioned that copy of the plaint alongwith its pages from 1 to
710 (Volume I to III) are annexed. Accordingly, it is clear that plaintiff
is failed to comply the mandatory condition as per Order 39 Rule 3(a)
of the CPC. Hence, it is concluded that there is no appropriate service
of summons to the defendant.
13. On perusal of roznama dated 07/06 onwards, no one was
there present before the Court on behalf of defendant for about four
dates. Meanwhile this Court has proceeded for order of suit to proceed
without written statement. It is always appropriate to decide the matter
on merit. Defendant is present before the Court alongwith the written
statement. Considering aforesaid submission, I proceed for following
order :
ORDER
1. In view of pursis vide Exh.6, application submitted by the
defendant vide Exh.4 is disposed off as not pressed.
2. In view of specific clause mentioned in Rate Contract dated
17/05/2018, bank guarantee came to be expired on
26/04/2020. Therefore, Notice of Motion No. 1707/2019
becomes infructuous.
3. Considering specific liberty granted by this Court in
roznama dated 24/04/2019, defendant to submit the
written statement. Defendant to supply the copy of written
statement to plaintiff.
4. Both side to submit draft issues and schedule of case
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 6 Combine Order.
management hearing to expedite hearing.
5. If both side insist, suit can be disposed off at the earliest by
fixing the dates of twice in a week, as per convenience and
schedule be fixed.
6. Exh.4 and Notice of Motion No. 1707/2019 stand disposed
off .
7. Copy of written statement is marked vide Exh.7.
(Note : Learned Adv. Karoth for plaintiff submits that he
will challenge aforesaid order, till then written statement
shall not be accepted. There is no executory order passed
by this Court. Hence, no stay can be granted. Further
hearing will depend on schedule of hearing (case
management hearing), to be submitted by both side.
Hence, next date 15/06/2021 is given as prayed by Adv.
Karoth.)
Adv. Karoth has refused to accept the copy of written
statement marked vide Exh.7 and prayed for longer date,
hence next date 15/06/2021 is granted as prayed.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 08/04/2021. Mumbai.
1. Dictated on : 08/04/2021.
2. Transcribed on : 29/04/2021.
3. Signed on : 05/05/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1707/19 and Exh.4 in Comm. Suit No. 3/19. 7 Combine Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/05/2021. 10.52 a.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 08/04/2021.
Judgment/Order signed by P.O. on 05/05/2021.
Judgment/Order uploaded on 06/05/2021.
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