Order 1

Order Details: Order below exhibit
Pdf Text: Order below Exh. E in
Execution Appln No.127 of 2019 1
MHCC010040842019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
ORDER BELOW APPLICATION (EXH.E)
IN
EXECUTION APPLICATION NO.127 of 2019.
M/s. Swadeshi Textiles Pvt.Ltd. ...Applicant/
Defendants
/Judgment Debtor.
In the matter of :-
M/s. Venus Trading Company ....Plaintiff/Decree
Holder.
V/s.
Swadeshi Textiles Pvt.Ltd. ..Defendant/
Judgment Debtor.
Appearances :-
Adv. Debasish Nath h/f Adv Ganeshe Shetty for plaintiff/Decree Holder.
Adv. Vasudha Gupta i/b Y and A Legal for defendant/ Judgement
Debtor.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 31/01/2024
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Order below Exh. E in
Execution Appln No.127 of 2019 2
ORDER
Vide this affidavit-in-reply cum objection the
defendant/Judgment Debtor prays to dismiss the Execution Application.
2 It is contention of the defendant that the plaintiff/ decree
holder has not come before the Court with clean hand. The
defendant/Judgment Debtor-Company was not aware as to the
proceeding pending vide suit No. 4152 of 2011. The defendant came to
know as to the impugned decree/judgment when the court issued
warrant under order XXI Rule 54 and 53 of the Code of Civil Procedure,
1908(In short Code) to attach the immovable and movable property of
the defendant vide this Execution Application. The suit summons were
issued through registered acknowledgment due on 12th September 2011
to the defendant/company on its address at G.I.D.C./Sarigram at
Gujarat and not at Mumbai. Therefore, the defendant is not served with
Writ of Summons.
3. The defendant further contends that the plaintiff himself
was absent before the Court during the course of hearing of the suit as
the defendant was not aware as to the proceedings of the suit . The suit
proceeded exparte. The defendant also states that the suit was
dismissed for want of prosecution on 27th August 2014 and thereafter, it
was restored as per order dated 12th November, 2014 in Notice of
Motion No. 3637 of 2014. Thereafter, the suit was decreed exparte.
Therefore, it is essential to set aside the exparte decree. It is also case
of the defendant that the plaintiff had issued notice on 13th November,
2010 through his advocate to show that goods of Rs.16,35,513/- were
supplied and delivered to the defendants-Company. However, in
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Order below Exh. E in
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examination in chief, the plaintiff’s witness states that an amount of Rs.
16,37,697/- was paid to the plaintiff and balance amount of
Rs.1,26,540/- remained to be paid which is inconsistent to the
statement of account at Exh. B attached to the list of documents. It
demonstrate that the defendant had paid an amount of Rs 15,08,798/-.
Therefore, there is inconsistency in the case of the plaintiff itself. The
plaintiff himself prolonged the matter and filed Execution Application
after period of 4 years of the decree. Hence, prayed Execution
Application be dismissed.
4. In reply, decree holder contend that the defendant has filed
reply to the Execution Application with ulterior motive. Hence, it be
rejected with compensatory costs. He specifically submits that the
defendant was duly served with summons along with copy of plaint
copy of Notice of Motion was also served upon it. However, the
defendant failed to appear. He also submit that the executing court
cannot be beyond the decree. Therefore, prayed to reject the reply cum
objection raised by the defendant.
5. Ld.advocate for the Judgment debtor argued that no proper
opportunity is given to the defendant while passing the decree and he
also submit that the decree holder has not calculated the amount of
decree. On the contrary, it is submission of the Ld advocate for the
decree holder submits that his reply to the objection raised by the
defendant be treated as argument.
6. During the course of argument, Ld. advocate for the
defendant fairly contends that the defendant has not challenged the
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Order below Exh. E in
Execution Appln No.127 of 2019 4
decree under execution. It means decree under execution has attained
the finality. The defendant vide this objection prayed for rejection of the
Execution of Application on the aforesaid ground. In such
circumstances, it is necessary to see whether judgment debtor has case
to try or this court can set aside impugned decree vide this objection
7. The defendant itself contends that he was served with Writ
of Summons on the address at Gujarat, but submit that rubber stamp
affixed on the acknowledgment receipt is not of the defendant -
Company. Therefore, service of Writ of Summons is not proper and
completed. On the other hand, in reply, the plaintiff contends that the
defendant was served with Writ of Summons, and Notice of Motion
moved by the plaintiff to restore the suit. This fact so far as the service
of Notice of Motion is concerned, judgment debtor has not challenged
during the course of argument or by way of rejoinder to the reply of the
plaintiff. Thus, it is brought on record that defendant had notice of the
suit pending before this Court.
8. The sum and substance raised by the defendant that he was
not served with Writ of Summons and therefore, he could not appear
before the Court. The defendant no where vide this objection states that
it has invoked provision of Order IX Rule 13 of the Code. If the
defendant has case under Order IX Rule 13 of the Code, it ought to have
filed proper proceeding. The defendant has not filed any such
proceedings under Order IX Rule 13 of the Code. Therefore, vide this
objection, the case of the defendant under Order IX Rule 13 cannot be
entertained. Rather the defendant nowhere states that he has moved
this application under Order IX Rule 13 of the Code though the
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Order below Exh. E in
Execution Appln No.127 of 2019 5
defendant has challenged the Execution Application on the ground that
he was not served with Writ of Summons. It is also necessary to note
that vide this objection, the judgment debtor/the defendant has
challenged Execution Application and prayed to dismiss the same. There
is no prayer made by the defendant that the decree be set aside and suit
be restored giving an opportunity to contest. Thus, the objection cum
reply, vide this exhibit is not maintainable and deserves to be rejected.
In the result, following order is passed
ORDER
The affidavit-in-reply cum objection vide Exh. E is hereby
rejected and disposed off accordingly.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:30.01.2024 Greater Bombay (CR 59).
Declared on : 30.01.2024
Dictated on : 30.01.2024
Transcribed on : 08.02.2024
Checked on : 12.02.2024.
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.02.2024 at 4.45 -P.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 30.01.2024
Order signed by P.O. on 12.02.2024
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Order below Exh. E in
Execution Appln No.127 of 2019 6
order uploaded on 12.02.2024
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