Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010040182018
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1251 OF 2018
IN
EXECUTION APPLICATION 26 OF 2017
IN
SUMMARY SUIT NO.5112 OF 2012
Vaishnavi Vijay Bhatkar ] … Plaintiff
V/s
Mr. Amarnath Rajaram Bhosale ] ... Defendant
Appearances :-
Ms. Sayli, Ld. Adv. for plaintiff.
Mr. Sanket Mungle Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 4th March, 2021
ORAL ORDER
1. Defendant / Judgment debtor took out this Notice of
Motion for condonation of delay in filing this Notice of Motion, for
staying further proceedings in the Execution Application of decree dated
17.02.2016 passed in the Summary Suit No.5112 of 2012, for passing
MHCC010040182018
-- 1 of 11 --
- 2 - NM 1251/2018 in
Sum Suit 5112/2012
order of deattachment of the movable and immovable property, vide
order dated 24.11.2017 in view of the said decree.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, affidavit in reply of plaintiff to the Notice of Motion and
additional affidavit of defendant in support of Notice of Motion.
3. Heard Learned Advocate Ms. Sayli Apte for plaintiff and
Learned Advocate Mr. Sanket Mungle for defendant.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether there is delay in taking out
Notice of Motion?
In the negative.
2. Whether further proceedings in Execution
Application of the decree passed in the
said Summary Suit No.5112 of 2012 can
be stayed?
In the negative.
3. What Order ? Notice of motion is
dismissed as per final
order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of defendant/Judgment debtor that
plaintiff filed the said suit for recovery of money based on alleged
agreement dated 06.01.2010, dishonour of cheque dated 15.12.2010
for the sum of Rs.4,00,000/- (Rs. Four Lakhs only) and for the sum of
Rs.3,00,000/- (Rs. Three Lakhs only).
-- 2 of 11 --
- 3 - NM 1251/2018 in
Sum Suit 5112/2012
6. The said suit is filed after dismissal of the Complaint
bearing No.1303276/SS/2011, filed under Section 138 of the
Negotiable Instruments Act, by the Metropolitan Magistrate Court,
Dadar, Mumbai vide order/Judgment dated 08.08.2011. Defendant/
Judgment debtor is acquitted in the said proceeding filed under Section
138 of the Negotiable Instruments Act, as per Section 255(1) of Cr. P.C.
on 08.08.2011.
7. The said suit is proceeded Exparte and Judgment is
delivered on 17.02.2017. He had appeared in the said suit and had
filed application for leave to defend the suit under Order 37, Rule 5 of
the Code of Civil Procedure. The Court granted him conditional leave
to defend the suit subject to deposit of Rs.3,00,000/- (Rs. Three Lakhs
only) in the Court and further permitted to file written statement after
depositing the said amount. His then Advocate did not inform him
about the order of the said conditional leave and consequently matter
proceeded Ex-parte against him.
8. Defendant came to know about the order of attachment of
movable and immovable property passed on dated 26.11.2017 in the
said Execution Application in the month of August, 2017. He applied
for certified copy of entire proceeding on 04.08.2017. He received
entire proceeding on 09.11.2017. After going through the Ex-parte
Judgment, he approached the then Advocate but he did not get
clarification from his then advocate therefore, he engaged the present
advocate. He is working as a Security Guard in Private Company. His
salary is Rs.10,000/- (Rs.Ten Thousand only) per month. Case of the
-- 3 of 11 --
- 4 - NM 1251/2018 in
Sum Suit 5112/2012
plaintiff is not trustworthy. He be permitted to put up his case
therefore, delay be condoned.
9. It is contention of defendant in the additional affidavit filed
in support of Notice of Motion that he was not aware of granting him
conditional leave to defend the suit dated 13.09.2014. He came to
know about the said conditional Order to leave to defend the suit when
bailiff of this Court visited his residence in the month of December,
2017. He was under bonafide impression that erstwhile Advocate Mr.
Pathak was regularly attending the matter. His financial condition was
not sound. He had no option but to place entire reliance on his
erstwhile Advocate. His unmarried sister was suffering from high
diabetes. During the said period he had to spend huge amount for her
treatment. Because of treatment of his unmarried sister his financial
condition is deteriorated. He could not concentrate on the litigation,
ultimately the said suit decreed ex-parte by Judgment dated
17.02.2016. His the then advocate Dubey had assured him that this
Notice of Motion filed for stay and therefore the Execution of Decree
will be stayed automatically. The Advocate Dubey also informed that he
need not to worry about the execution. He personally met Mr. Dubey
advocate in the year 2018 but the said advocate shown his inability to
conduct the matter therefore, he engaged new Advocate.
10. Property which is attached pursuant to the order of
attachment i.e. Room No.6/27, Century Quarters, Pandurang Budhkar
Marg, Worli, Mumbai 400 030 does not belong to him. Owner of the
said propert is Centur Mills Textiles Private Limited. He is merely
occupier of the said premises. The said premises should not have been
-- 4 of 11 --
- 5 - NM 1251/2018 in
Sum Suit 5112/2012
attached. The attachment is void and illegal. Therefore, the said
attachment be uplifted. If the Notice of Motion is allowed he will
attend the hearing of the suit regularly. He is desireous that the matter
be heard on merit. Therefore, Notice of Motion be allowed and
opportunity be given to him to defend the suit. Hence, further
proceedings in view of the said decree be stayed.
11. In brief, it is contention of the plaintiff that the reliefs in the
Notice of Motion are not maintainable. No sufficient cause has been
shown for the condonation of delay in taking out this Notice of Motion.
Judgment debtor/ defendant was attending the said suit through out
but did not comply the conditions imposed to defend the suit.
Therefore, the Judgment debtor is not entitled for any relief as
mentioned in the Notice of Motion. Notice of Motion be dismissed with
compensatory costs.
12. Perused plaint of the said suit. Plaintiff had prayed to
direct to the defendant to pay to the plaintiff a sum of Rs.300,000/-
(Rs.Three Lakhs only). The said suit filed in the year 2012. Perused
copy of the Judgment dated 08.08.2011 passed in the proceedings
under Section 138 of the Negotiable Instruments Act. As per the said
Judgment defendant is acquitted from the proceedings under Section
138 of the Negotiable Instruments Act as per Section 255(a) of the Cr. P.
C.
13. Perused Judgment dated 17.02.2016 passed in the said
suit. As per the said Judgment defendant is directed to pay to the
plaintiff Rs.3,00,000/- (Rs. Three Lakhs only) with interest at the rate
-- 5 of 11 --
- 6 - NM 1251/2018 in
Sum Suit 5112/2012
of Rs.12% per annum from the date of filing the suit till its full
realization.
14. The Learned Advocate appearing for the defendant relied
upon the Judgment of the Hon’ble Supreme Court in the case of Rafiq
and Another Vs. Munshilal and Another (1981) 2 S.C.C.788. The
Hon’ble Supreme Court held “contesting parties should not suffer for
lapses on the part of thier counsel. In the cited case Ex-parte order of
dismissal of appeal was passed by the Hon’ble High Court on non-
appearance of appellant’s counsel on the date of hearing. The
application for recalling the said order filed by the counsel for
permission to participate in the hearing of the appeal was rejected on
the ground of unexplained delay. The Hon’ble Supreme Court held
rejection of the application is jot justifiable as the party should not
suffer for the inaction, deliberate omission, or misdemeanour of his
agent, or the lawyer”. In the case at hand the defendant/ Judgment
debtor did not comply the order on conditional leave to defend the suit.
Not only this even the present Notice of Motion defendant / Judgment
debtor did not pray to allow him to comply the said conditional order
or to leave to defend the suit. Therefore, facts and circumstances of the
case and case at hand are not similar with each other.
15. The Learned Advocate appearing for defendant relied upon
second citation of Hon’ble Supreme Court of India in the case of ISHA
BHATTACHARJEE Vs. MANAGING COMMITTEE OF RAGHUNATHPUR
NAFAR ACADEMY AND OTHERS (2013) 12 S.C.C. 649. The Hon’ble
Supreme Court summarised that The principles applicable to an
application for condonation of delay. I have gone through the citation.
-- 6 of 11 --
- 7 - NM 1251/2018 in
Sum Suit 5112/2012
One of the principle is that there should be a liberal, pragmatic, justice
oriented, non pedantic approach while dealing with an application for
condonation of delay, for the courts are not supposed to legalise
injustice but are obliged to remove injustice.
16. It is contention of the defendant that his advocate did not
inform him regarding the said conditional order and he came to know
about the same when bailiff of this Court visited his residence for
attachment to movable and immovable property. Defendant prays to
stay all the further proceedings in the execution application but the
defendant/ judgment debtor did not pray to permit him to comply the
order of said conditional leave to defend the suit.
17. Perused Article 123 of the Limitation Act, 1963. It provides
30 days from the date of the decree or where the summons or notice
was not duly served, when the applicant had knowledge of the decree
to set aside a ex-parte decree.
18. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
19. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant, as per Rule 2 of
-- 7 of 11 --
- 8 - NM 1251/2018 in
Sum Suit 5112/2012
Order 37 of the Code of Civil Procedure and the defendant may at any
time within ten days from such service enter an appearance either in
person or by pleader and he shall file in Court an address for services of
Notice on him.
20. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
21. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
22. Perused Order 37 Rule 4 of the Code of Civil Procedure.
As per the said provision, after decree the Court may, under special
circumstances, set aside the decree, and if necessary stay or set aside
execution, and may give leave to the defendant to appear to the
Summons and to defend the suit, if it seems reasonable to the Court so
to do, and on such terms as the Court thinks fit.
-- 8 of 11 --
- 9 - NM 1251/2018 in
Sum Suit 5112/2012
23. As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Ex-parte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
24. As per Order 9 Rule 11 of Code of Civil Procedure where
there are more defendants than one, and one or more of them appear,
and the others do not appear, the suit shall proceed, and the Court shall,
at the time of pronouncing Judgment, make such order as it think fit
with respect to the defendants who do not appear.
25. If for a moment it is presumed that the attached property is
not belonging to the defendant/ Judgment debtor in that contingency
the person who is owner of the property should have approached to the
Court.
26. Perused Order dated 13.09.2014 passed in Summons for
Judgment No.102 of 2013 in the said suit. The Operative Order passed
in the said Summons for Judgment runs as under :
O R D E R
1. Leave to defend the suit is granted, subject to depositing the
principal sum of Rs.3,00,000/- (Rupees Three Lacs only) in
court, within four weeks.
2. After depositing the said amount within four weeks,
-- 9 of 11 --
- 10 - NM 1251/2018 in
Sum Suit 5112/2012
defendants to file written statement whithin two weeks
thereafter.
3. On depositing the aforesaid amount by the defendants
within four weeks in the Court, Registrar (Civil) is directed to
invest the said amount in any Nationalized Bank, initially for
the period of one year and continue to renew the same for the
like period, until further orders.
4. On failure of the defendants to deposit the amount within
four weeks, Summons for Judgment would be made absolute.
5. Summons for Judgment No.102/13 stands disposed of
accordingly.”
Sd/-
Date : 13.09.2014 (A.S. MAHATME)
Judge,
City Civil Court,
Gr. Bombay.
27. Therefore, in the facts and circumstances, I do not find
substance in the contention of the defendant/ Judgment debtor to
condone the delay and to stay attachment order and further
proceedings of the Execution application. Hence, I record my findings
to point No.1 and 2 in the negative and point No.3 Notice of Motion is
dismissed as per final order. Hence, following order:
ORDER
1. Notice of motion No. 1251 of 2018 in Execution Application No.
26 of 2017 in Summery Suit No. 5112 of 2012 is dismissed.
2. Both parties to bear their own costs.
3. Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 04/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 04/03/2021
Transcribed on : 06/03/2021
Checked on : 08/03/2021
Signed on : 08/03/2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 10 of 11 --
- 11 - NM 1251/2018 in
Sum Suit 5112/2012
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.03.2021 at 05.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 04/03/21
Judgment/order signed by P.O. on 08/03/21
Judgment/order uploaded on 08/03/21
-- 11 of 11 --