Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER NM 1188/2018 ..1.. in Sum Suit No.385/2016
MHCC010038292018 Presented on : 21-03-2018
Registered
on
: 21-03-2018
Decided on : 31/07/2026
Duration : 08Y: 04 M : 10 D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT MAZGAON
NOTICE OF MOTION NO.1188 OF 2018
IN
SUMMARY SUIT NO.385 OF 2016
Dr. Vasantha Bharucha
Age: Adult, Occu: Service
R/o. 1001 Raheja Centre, 214, Nariman
Point, Mumbai-400 021.
]
]
]
]
...Applicant/Original
Defendant No.9
Versus
Earl Manfred Ghohs
Age: 61, Occupation : Business
Address: West Burke, Vermont 05871
U.S.A.
]
]
]
] ...Plaintiff
Appearance :-
Ld. Adv. Khan Sabha for the applicant/defendant No.9.
Ld. Adv. Rahul D. Motkari for the plaintiff.
CORAM : HHJ S. S. PARAVE (C.R.No.84)
DATE : 31/07/2026
O R D E R
The present Notice of Motion is moved by defendant No.9
for the condonation of delay caused for filing appearance in the
Summary Suit No.385 of 2016.
2. According to the defendant No.9, the writ of summons is
received in the office of defendant No.1 on 27/04/2017. However he is
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ORDER NM 1188/2018 ..2.. in Sum Suit No.385/2016
appeared in the suit on 28/02/2018. He was supposed to appear in the
suit within ten days from 27/04/2017. The delay caused for entering
appearance in the suit is not intentional one. The defendant No.9 further
content that he was an independent director of defendant No.1 was not
taking part in day to day activities of defendant No.1 company. During
the period of April 2017 to August 2017 he was out of town and
traveling on holiday. Hence staff of the office of defendant No.1 also
could not make contact with him.
3. On 15th September 2017 he sent his Vakalatnama to his
earlier advocate however his earlier advocate failed to take steps to filed
notice of motion. Thereafter he engaged new advocate and immediately
filed this notice of motion. In all these circumstances he failed to appear
in the suit within stipulated period of the ten days from the date of
service of writ of summons. If, this motion is not allowed by condoning
the delay then he will suffer heavy and irreparable loss. Lastly, he
requested for allowing this Notice of Motion by condoning delay for the
appearance.
4. The plaintiff contested the motion by filing his affidavit in
reply dated 12/11/2020. According to the plaintiff, the reason assigned
for the condonation of delay is not satisfactory and convincing. As per
the contention made by defendant No.9, he came to know about writ of
summons on 15/09/2017, however he entered appearance in the month
of February 2018. He has not explained the reason for the said delay.
Defendant No.9 has also not given the number of days of delay. He has
also not explained the delay properly. In the circumstances the plaintiffs
requested for dismissal of the Notice of the motion.
5. Points for determination and my finding thereon along with
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ORDER NM 1188/2018 ..3.. in Sum Suit No.385/2016
reasons stated thereto are as follows:-
SR. NO. POINTS FINDINGS
1. Whether the defendant No.9 has
made out sufficient cause for the
condonation of delay? In the Affirmative
2. What Order? As per final order
R E A S O N S
AS TO POINT NO.1 :
6. Perused the roznama and record of the case. Herein it is not
disputed that defendant No.9 is served with writ of summons on
27.04.2017. As per the provision under order 37 Rule 3 of the C.P.C. he
was supposed to enter an appearance in the matter within 10 days from
the date of service of writ of summons. However, he is seeking
permission for appearance in the Summary Suit after almost ten months
form the date of service of writ of summons. The delay in entering
appearance in a Summary Suit can be condoned as per the provision of
Order 37 rule 3(7) of the CPC r/w section 5 of the Limitation Act on
showing sufficient causes. It is settled position of law that length of delay
is not material but reason assigned for the delay is needs to be taken into
consideration while adjudicating of motion for condonation of delay.
7. Herein, the defendant No.9 is seeking the condonation of
delay on the ground that since before the service of summons he was out
of station and he returned back in the month of July 2017. The staff of
the office of defendant no. 1 also not informed him in time about the
receipt of summons of this court. The defendant No.9 further contents
that he made contact with his earlier advocate on 15/09/2017 from the
service of summons. However, he has not taken immediate steps to move
notice of motion. Hence, he change his advocate and filed notice of
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ORDER NM 1188/2018 ..4.. in Sum Suit No.385/2016
motion. In support of his contention, defendant no.9 filed affidavit. Hence
there is no reason to reject to contention of the defendant no.9 that from
April 2017 to August 2017 he was out of station and also traveling on
holiday. The plaintiff also not seriously challenged the said fact. As per
the contention of the defendant No.9 he came to know the writ of
summons on 15/09/2017. The record of case shows that defendant No.9
appeared in the suit in the month of February 2018.
8. According to the defendant No.9, the said delay has been
caused due to the inaction on the part of earlier advocate to move notice
of motion. He also told defendant No.9 about the requirement of filling of
notice of motion for the condonation of delay. The defendant No.9 has
filed affidavit in support of the contention made in the notice of motion.
He affirm the said fact on oath by filling affidavit. However considering
the time taken by defendant No.9 to move this notice of motion it can be
said that he failed to take quick steps to enter appearance in the suit and
to move the notice of motion for getting condoned the delay. However
that can not be considered as complete negligence on the part of
defendant No.9. So also the delay caused for entering and appearance
can not be term as highly inordinate delay.
9. The power under section 5 of the Limitation Act is discretionary
power to condoned the delay if sufficient cause is given. The power
cannot be exercised even if sufficient cause is established for the factors
like inordinate delay, negligence and want of due diligence. Moreover
while exercising the discretionary power of condonation of delay liberal
view is required to be taken. Here in this case reason assigned by the
defendant no.9 appears to be a satisfactory reason. Slow action on the
part of the defendant to take appropriate action in the suit cannot be
considered as an absolute negligence. Moreover in the present case the
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ORDER NM 1188/2018 ..5.. in Sum Suit No.385/2016
delay caused also cannot be termed as an inordinate delay. In the
circumstances, it is clear that defendant no. 9 made out sufficient cause
for the condonation of delay caused for entering and appearance in the
suit. Hence I answer point no. 1 in the affirmative.
As to point No.2:
10. In view of affirmative finding to the point No.1, delay caused
for entering into an appearance in the Summary Suit No.385/2016 will
have to be condoned by allowing the this notice of motion. At the same
time the plaintiff will have to be compensated by awarding cost of
Rs.3000/- for delay. Hence, I answer point No.2 accordingly and pass
following order:-
ORDER
1. Notice of Motion No.1188 of 2018 is allowed in
Summary Suit No.385 of 2016.
2. Delay caused to the defendant no. 9 for entering
appearance in the Summary Suit No.385 of 2016 is
condoned.
3. Defendant No.9 is directed to pay cost of Rs.3000/-
to the plaintiff for the delay.
4. The VP filed by advocate for the defendant No.9 is
taken on record.
5. Notice of Motion No.1188 of 2018 is disposed of
accordingly.
(S. S. PARAVE)
Adhoc Judge,
City Civil & Addl. Sessions Court,
Mazgaon, Mumbai,
Court No.84
Dated : 31/07/2026
Dictated and typed on : 31/07/2026.
Signed by HHJ on : 01/08/2026.
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ORDER NM 1188/2018 ..6.. in Sum Suit No.385/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Typed by :- Umesh S. Patil
(Typist)
Uploaded by :- Shiva J. Ingle
(Stenographer)
01/08/2026 At about 02:00
p.m.
Name of the Judge (With C.R. No.) HHJ S. S. PARAVE
(COURT ROOM NO.84)
Date of Pronouncement of
JUDGMENT / ORDER
31/08/2026
JUDGMENT / ORDER signed by P.O.
on
01/08/2026
JUDGMENT / ORDER uploaded on 01/08/2026
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