Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 877/16 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1287 OF 2018
(CNR NO.MHCC010040922018)
IN
SUMMARY SUIT NO.877 OF 2016
Arham Exims Pvt.Ltd. ...Plaintiff
V/s
GPR Power Solutions Pvt.Ltd. ...Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 16/10/2018
Adv. Mr.Tanna for plaintiff.
Adv. Mr.S.R.Gupta for defendant.
ORDER BELOW NOTICE OF MOTION NO.1287/18
1. This Notice of Motion is taken out by the defendant for
condoning the delay in filing the affidavit in reply to the Summons for
Judgment. The plaintiff has resisted to the said Notice of Motion by
filing reply.
2. Read the application and reply.
3. Heard. The learned advocate for the defendant has submitted
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that on 04/01/2017 the defendant gave its appearance in the Suit after
service of Writ of Summons. It is submitted that as per rules it was for
the plaintiff to take out Summons for Judgment within 10 days from
the date of appearance of the defendant in the suit, but the plaintiff
took out the Summons for Judgment only on 27/11/2017 i.e.after 6
months from the date of service of summons and it was adjourned for
filing reply on 06/02/2018. It is submitted that thereafter the advocate
for defendant gave the letter on 4/12/2017 calling for the inspection of
the documents filed alongwith the Summons for Judgment. It is
submitted that the contact number of the defendant viz.R.Saravanan
was with the advocate for defendant, but contact number was closed
down as he left defendant/company and the advocate for defendant
could not contact the defendant/company to take the inspection of
documents on 4/12/2017. It is submitted that on 27/2/2018 another
representative of the defendant/company viz.V.Nadhamuni had come
to visit Mumbai in connection with some business transaction and
called the advocate for defendant to inquire about the progress of the
matter. Then the advocate for defendant informed to him about the
Summons for Judgment. It is submitted that the reply to the Summons
for Judgment could not be filed within prescribed period as per law and
that there is delay in filing the reply. It is submitted that the delay is
neither intentional nor deliberate and if the delay is condoned, no
prejudice would cause to the plaintiff, therefore, it is requested to make
the Notice of Motion absolute.
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4. Per contra, the learned advocate for plaintiff has submitted
that the stand taken by the defendant is absolutely not correct as no
specific circumstance which was unavoidable or beyond the control of
the defendant is shown. It is submitted that there is a huge delay of
more than 100 days in filing the reply to the summons for judgment. It
is submitted that the Notice of Motion is filed only to prolong the
matter and the averment made in the Notice of Motion are misleading.
Lastly, it is requested to dismiss the Notice of Motion otherwise
irreparable loss, injury will be caused to the plaintiff.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the record. It appears that
the plaintiff has filed the present suit under Order 37 of the Code of
Civil Procedure, for the recovery of an amount of Rs.18,64,099/
alongwith further interest at the rate of 30% p.a. on the principal
amount of Rs.5,67,000/ from the date of the suit till its realisation. It
appears that after service of writ of summons, the defendant gave his
appearance in the suit within 10 days. Thereafter, the case was
adjourned from time to time for taking the steps by the plaintiff. It
appears that on 27/11/2017 the plaintiff filed the Summons for
Judgment alongwith affidavit. As per Order 37 Rule 4, if the defendant
enters an appearance it is for the plaintiff to serve upon the defendant a
Summons for Judgment returnable not less than 10 days from the date
of Service supported by an affidavit verifying the cause of action and
the amount claimed. In the matter it appears that the plaintiff did not
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serve the Summons for Judgment upon the defendants for about more
than 6 months.
6. Apart from that, it appears that the suit is not proceeded
exparte and the learned advocate for the defendant has submitted that
the defendant has substantial defence and meritorious case and
submitted that if the delay is not condoned in filing the reply to the
summons for judgment, serious prejudice would cause to the
defendant. Considering the above submissions of the learned advocate
for the defendant so also, the reason mentioned in the Notice of Motion
supported with an affidavit, in my opinion, this is a fit case in which the
delay is required to be condoned, to meet the ends of justice as it is not
intentional or malafide. Hence, the Notice of Motion needs to be made
absolute. In the result, following order:
: ORDER :
1. Notice of Motion No.1287/18 is allowed.
2. The delay caused in filing the reply to the summons for judgment
is hereby condoned.
3. Notice of Motion No.1287/18 is disposed of.
(M.M.UMAR)
Judge,
16/10/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 16/10/18.
Date of Transcription : 16/10/18.
Date of signature : 19/10/18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19/10/18 4.45p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
16/10/18
Judgment/order signed by P.O on 19/10/18
Judgment/order uploaded on 19/10/18
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