Order 1

Order Details: Notice of Motion
Pdf Text: NM In SS 1164/16 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1221 OF 2018
(CNR NO.MHCC010039232018)
IN
SUMMARY SUIT NO.1164 OF 2016
(CNR NO.MHCC010105712016)
Point Blank Advertising Pvt.Ltd. ...Plaintiff
V/s
Dr.Batra's Positive Health Products Limited ...Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 12/12/2018
Adv. Mr.Noman Jafari for plaintiff.
Adv. Ms.Deepa Kamat for defendant.
ORDER BELOW NOTICE OF MOTION NO.1221/18
1. This Notice of Motion is taken out by the defendant for
condoning the delay and allow him to file the reply to the Summons for
Judgment, and to take the part in the proceedings. The plaintiff has
resisted to the said application by filing reply.
2. Read the application and reply.
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3. Heard. The learned advocate for the defendant has submitted
that the plaintiff did not file the Summons for Judgment for a long
considerable time and the Court was transferred from Court no.27 to
Court no.10 and thereafter the advocate for plaintiff appeared in Court
room no.10 and filed the Summons for Judgment and case was listed
for filing reply on 27/7/2017. It is submitted that the advocate for the
defendant was held up in another Court, therefore, case was adjourned
on 14/9/2017. The Court was transferred from Court no.10 to Court
no.28 therefore the Court was vacant on 14/9/2017 and thereafter the
matter was adjourned to 09/01/2018. When the advocate for
defendant tried to file the reply in the Summons for Judgment, it was
informed to him that the case is kept for Summons for Judgment
hearing. It is submitted that the defendant was unable to keep the track
of the matter, nor the matter was traced out. On 14/2/2018, when the
advocate for defendant attended the Court in another matter, it was
realised by him that the matter is adjourned for argument on
23/2/2018. It is submitted that due to oversight mistake, the reply to
Summons for Judgment was not submitted in time. Therefore, it is
requested to condone the delay and defendant be permitted to file the
reply to the Summons for Judgment. It is submitted that the defendant
has good, meritorious and triable case on merits. If the defendant is not
allowed to file the reply to the Summons for Judgment, serious
prejudice would cause to the defendant.
4. Per contra, the advocate for plaintiff has submitted that the
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defendant has filed the present Notice of motion only with the sole
intention to delay the matter. It is submitted that the Summons for
Judgment was served upon the advocate for the defendant on
11/7/2017 and the case was adjourned to the reply of Summons for
Judgment but on 27/7/2017 neither the defendant appeared nor he
filed the reply. Therefore, 'no reply' order was passed. Thereafter, the
case was adjourned from time to time but the defendant did not
appear. It is submitted that the defendant has not shown any sufficient
reasons for not appearing and not filing leave to defend. It is submitted
that the reason for not filing the reply that the advocate for defendant
was held up in another Court cannot be a ground to condone the huge
delay. It is submitted that no sufficient and cogent explanation is put
forth by the defendant for condoning the delay, therefore, it is
requested to dismiss the Notice of Motion.
5. I have duly considered the above submissions of both the
sides, so also, I have gone carefully through the case record. On the cost
of repetition it is necessary to mention here that the present suit was
filed by the plaintiff under Order 37 of the Code of Civil Procedure, for
the recovery of Rs.3,66,549/ on 5/10/2016. It appears that the
defendant filed the Vakalatnama of advocate Ms.Deepa Kamat on
9/12/2016. On 27/3/2017 the plaintiff submitted Summons for
Judgment, alongwith affidavit and the leave was granted to register the
same. It appears that the plaintiff served the Summons for Judgment to
the advocate of the defendant in Court on 11/7/2017 and as such the
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defendant did not file the reply, therefore, by order dated 27/7/2017
the Summons for Judgment was proceeded without reply of the
defendant. On 23/2/2018 the defendant took out the present Notice of
Motion for condonation of delay.
6. There is no doubt that there is a delay of 232 days in filing
the Notice of Motion for the grant of permission to file the reply to the
Summons for Judgment. It is important to mention here that the
defendant was required to file the reply to the Summons for Judgment
within 10 days from the service of Summons for Judgment, it is not
done. It appears that the case was transferred from one Court to
another and as per the contention of the defendant it was not located.
It is well settled that while considering the prayer for condonation of
delay, the liberal approach to be adopted. Duration of delay is
insignificant. The Court has to take into account if there is acceptable
or pardonable explanation. It is also well settled that the primary
function of the Court is to adjudicate disputes between the contesting
parties and to advance substantial justice. The rules of limitation are
not made to harm the valuable rights of the parties. The discretion
given to the Court to condone the delay and discretion in that behalf
should be exercised to advance the substantial justice.
7. Considering the nature of the suit and circumstances on
record if the delay is condoned to file the reply on the Summons for
Judgment after awarding the reasonable and sufficient costs to the
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plaintiff, no prejudice would cause to the plaintiff.
8. It appears that the delay caused in filing the reply to the
Summons for Judgment is not intentional or malafide. It appears that
the defendant has given sufficient, acceptable explanation for not filing
the reply to the Summons for Judgment within time. Hence, the
interest of justice, requires to allow the Notice of Motion. In the result,
following order:
: ORDER :
1. Notice of Motion no.1221/18 is allowed.
2. The delay caused in filing the reply on the Summons for Judgment
no.149/17, is condoned, subject to costs of Rs.7500/ payable by the
defendant to the plaintiff on or before the next date.
3. The defendant is permitted to file the reply to the Summons for
Judgment and to take the part in the proceedings, subject to payment
of abovesaid costs.
4. The payment of costs is condition precedent.
5. Notice of Motion no.1221/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
12/12/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 12/12/18.
Date of Transcription : 12/12/18.
Date of signature : 14/12/18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/12/18 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
12/12/18
Judgment/order signed by P.O on 14/12/18
Judgment/order uploaded on 14/12/18
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