Final Order 1

Order Details: Notice of Motion
Pdf Text: NM IN Sum. S No.1078/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1207 OF 2018
IN
SUMMARY SUIT NO.1078 OF 2017
Nagurao Malku Gadge, age 50 years,
Indian Inhabitant, residing at Makadwala
Compound, Jai Shankar Chowk, Halaw
Pool Road, Kurla (W), Mumbai400070. ...Plaintiff
V/s
Dharmanath Vinayak Jadhav, adult, working for
gain with B.M.C.Office, IWard, Dept.CONSY,
E.C.No.4100210 P.C.No.6025, S.G.Barve
Marg, Kurla (W), Mumbai 400070 and residing
at Prabudha Nagar, Tata Colony, Near Jetwan
Boudh Vihar, Chembur (E), Mumbai400074. ...Defendant
Coram : His Honour Judge Shri M.M.UMAR
(C.R. No.28)
Dated : 16/07/2018
Adv. Mr.Balbheem Patil for plaintiff.
Adv. Mr.Daware for defendants.
ORAL ORDER
1. This Notice of Motion is taken out by the defendant for
condoning the delay of 69 days caused in filing the
appearance/Vakalatnama in the abovesaid suit, after 10 days from the
date of service of Writ of Summons. The learned advocate for the
plaintiff has given his say on the overleaf of the application.
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NM IN Sum. S No.1078/17 Oral Order 2
2. Read the application. Heard to the learned advocate for the
defendant, so also, for the plaintiff.
3. The learned advocate for the defendant has submitted that
the writ of summons was served upon the defendants on 17/12/2017
in the abovesaid suit. It is submitted that the defendant was suffering
from viral infection and high Fever and his family doctor advised him to
take complete rest for 15 to 20 days i.e. till 05/01/2018. It is also
submitted that after recovery from illness the defendant was facing
some personal difficulty and problem. Therefore, he was unable to file
Vakalatnama, within 10 days from the receipt of service of summons.
It is submitted that when he contacted his advocate, he was advised for
contesting the suit, appearance is must, Therefore, defendant has given
this Notice of Motion for condoning the delay for giving his appearance
in the aforesaid suit. It is submitted that the defendant has good case
on merits and if the permission is not granted, he will suffer and
damage will be caused to him which cannot be compensated in terms
of money, therefore, it is requested notice of motion be made absolute.
4. Per contra, the learned advocate appearing for plaintiff has
submitted that there is no proper explanation from the side of
defendants for not filing the appearance within stipulated time. It is
submitted that Notice of Motion be allowed after awarding heavy costs
to the plaintiff.
5. I have duly considered the above submissions of both the
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NM IN Sum. S No.1078/17 Oral Order 3
sides, so also, I have gone carefully through the case papers. It appears
that the defendant has given sufficient cause for not giving the
appearance within 10 days after receipt of writ of summons. It appears
from the medical certificate issued by Dr.(Mrs.)Saroj K.Bali, on
19/01/2018 that the defendant was suffering from fever and he was
advised to take the complete bed rest from 17/12/2017 to 5/1/2018.
Since the learned advocate for the plaintiff has given consent for
allowing the Notice of Motion after awarding the reasonable costs,
hence, I do not find any impediment in allowing the Notice of Motion.
In the result, following order :
ORDER
1. Notice of Motion no.1207/18 is allowed.
2. The delay caused for filing the appearance after service of writ of
summons is hereby condoned, subject to payment of costs of Rs.2,500/
payable to the plaintiff by the defendant on or before next date.
3. The payment of costs is condition precedent for condoning the
delay.
4. Notice of Motion no.1207/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
16/07/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 16/7/18.
Date of Transcription : 16/7/18.
Date of signature : 18/7/18
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NM IN Sum. S No.1078/17 Oral Order 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18.07.18 12.00 a.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri MM Umar (CR
No.28)
Date of Pronouncement of
Judgement/Order.
16.07.18
Judgement/order signed by P.O on 18.07.18
Judgement/order uploaded on 18.07.18
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