Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1329/2018 in Suit No.7406/2002
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1329 OF 2018
IN
SUIT NO. 7406 OF 2002
(CNR NO. MHCC010042362018)
State Bank Of India ….Plaintiff
Versus
Manish Parekh ....Defendant No. 1
Jana Seva Sahakari Bank Ltd ….Defendant No. 2
Appearance:
Ms. Fatima Lakdawala, Advocate for plaintiff.
Mr. Prashant Pandit, Advocate for defendant No. 2.
CORUM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATE : 11/03/2021
ORAL ORDER
1) The notice of motion is filed by defendant to set
aside exparte decree passed in Suit No. 7406/2002 by
condoning delay of 65 days to file notice of motion. The
defendant has also prayed to stay the execution application
392/2017 and warrant of attachment dt. 26.02.2018.
2) The Notice of Motion is supported by affidavit of
Vishwas Shridhar Mane, Manager/Authorized Officer of
defendant No. 2. He on oath stated that the suit was filed by
plaintiff for recovery of Rs. 4,50,103/ alongwith interest @
18 % p.a. from the date of filing of the suit till its realization.
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3) Defendant No. 2 stated that the suit was
transferred from Hon'ble High court to City Civil Court to
Mumbai on increase of pecuniary jurisdiction. However
notice to the defendant No. 2 was not issued about the
transfer. The defendant No. 2 came to know about the
judgment and decree passed in suit on 04.08.2017 when
they received letter of plaintiff dt. 01.08.2017 and thereafter
when execution proceeding was initiated by plaintiff and
defendant No. 2 was served on 30.11.2017.
4) Defendant No 2 stated that non appearance of
defendant No. 2 is not intentional. They were not aware of
the fact of transfer of the suit from Hon'ble Bombay High
court to the City Civil Court. They lost track of the matter as
the papers were lost due to transfer from one branch to
another and could not be attended in the Hon'ble High
court.
5) The defendant No. 2 prayed to restore the
exparte decree on the ground that no harm, loss and
damages will cause to the plaintiff. The defendant No. 2 is a
bank. There is no mistake or error on the part of defendant
No. 2 to disburse the amount of Demand Draft to the
defendant No. 1. The amount of Demand Draft cleared by
plaintiff in the clearing house of RBI. The defendant were
informed of fraud by plaintiff bank after one month of the
clearing and encashment of Demand Draft amount to the
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defendant No. 1 which was alleged as fraudulent.
6) Plaintiff bank filed reply to affidavit of Ravindra
Khade, Assistant Manager/Authorized Officer of plaintiff
bank. The plaintiff has denied the reasons to condone the
delay and restore the suit in the Notice of Motion. The
plaintiff stated that the notice of motion is grossly time
barred. The decree was passed on 11.12.2014. There is delay
of three years four months.
7) Plaintiff stated that the defendant No. 2 chose to
remain absent inspite of service of writ of summons and the
suit proceeded exparte. Plaintiff has denied that defendant
No. 2 has issued letter dt. 18.08.2017 to the plaintiff or their
advocates. The defendant No. 2 did not state anything about
the reason for their non appearance and file Written
Statement in the suit. The defendant No. 2 with malafide
intention is trying to delay the execution proceeding hence
prayed to reject the notice of motion with cost.
8) Heard advocate Mr. Prashant Pandit for
defendant No. 2 and Adv. Fatima Lakdawala for plaintiff.
Perused contents of notice of motion and reply supported by
affidavit. I have also gone through the rejoinder affidavit to
the reply of plaintiff filed by defendant No. 2.
9) Adv. Mr. Prashant Pandit for defendant No. 2
and Adv. Fatima Lakdawala for plaintiff has drawn my
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attention to roznama after the suit was transferred in the
City civil Court. Adv. Mr. Pandit for defendant No. 2 argued
that even though notice was to be issued as per the roznama
to the defendants the same was not complied. The defendant
No. 2 was not aware of the proceedings transferred to the
City Civil Court. The defendant No. 2 appeared before the
Hon'ble High Court and filed vakalatnama. The defendant
No. 2 bank has good defence and are ready to bear the cost
for setting aside the decree and they are also ready to
deposit the decreetal amount in the court.
10) On the other hand Adv. Ms. Lakdawala for
plaintiff argued that the defendant had knowledge of the suit
then to they failed to file Written Statement and proceed
with the suit. There is no proof of non availability of papers
of the suit with the defendant No. 2. The defendant No. 2
cannot blame the plaintiff for its own wrong in prosecuting
the suit. The defendant No. 2 are trying to prolong the
execution of decree passed in the year 2014 and incase this
decree is set aside it will take another ten years for the
plaintiff to get the relief. The defendant No. 2 was not
diligent with proceeding with the suit. Hence prayed to
reject the notice of motion.
11) The plaintiff filed suit before Hon'ble High court
on 27.03.2002. The defendant No. 1 was served through
paper publication. The suit was fixed for plaintiff's evidence.
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Plaintiff has adjourned the suit on the ground of non
availability of document on 09.02.2012, 26.06.2012,
12.07.2012, 19.08.2012, 16.08.2012 and 30.08.2012. The
first roznama after the suit was transferred is dt. 06.10.2012.
The parties were absent therefore it was adjourned to
16.03.2013. Adv. Aarti Nimbalkar for plaintiff was present.
Defendants were absent. It is noted in roznama that writ of
summons was published in newspaper inspite of this
defendants have not appear hence the suit proceeds Sans
Written statement of defendant and was adjourned to
05.10.2013. On 05.10.2013 the plaintiffs were absent.
Notice was issued to the parties and suit was adjourned on
15.01.2014. After the date was given, Adv. Ms. Aarti
Nimbalkar for plaintiff noted her presence.
12) The suit proceeded further but compliance of
roznama dt. 05.10.2013 to issue notices to the parties i.e.
Defendants was not complied and after recording evidence
of plaintiff the suit was decreed on 11.12.2014.
13) The defendant No. 2 came to know about the
decree passed in the suit when they received letter dt.
01.08.2017 from Advocate of Plaintiff on 04.08.2017. The
execution proceeding was filed on 22.09.2017(As per the
case status verified from CIS). The defendant No. 2 on oath
stated that they have received the notice of execution on
30.11.2017. The period for filing the notice of motion to set
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aside the decree will not extend on service to notice of
execution on 30.11.2017. The defendant No. 2 had
knowledge of exparte decree when they received letter from
Advocate for plaintiff on 04.08.2017. The notice of motion is
filed on 31.03.2018. There is delay of about five months
from the date of knowledge of decree and not 65 days as
prayed to condone in the Notice of Motion.
14) On perusal of roznama of suit, the notice was not
issued to the defendants even after there was roznama for its
compliance after the suit was received from Hon'ble High
Court. The defendant No. 2 did not prosecute the suit before
Hon'ble High Court from 2003 to 2012. Admittedly, after the
suit was transferred, defendant No. 2 had no knowledge as
they were not appearing in the suit before Hon'ble High
Court.
15) Plaintiff has filed the suit for recovery of the
amount of three Demand Drafts submitted by defendant No.
1 with defendant No. 2 bank for its clearance. The Demand
Drafts were cleared by defendant No. 2 bank and thereafter
the plaintiff bank came to know that there was fraud and the
demand drafts were deposited which were lost from the
branch of the plaintiff bank in the State of Bihar. The
contention of defendant No. 2 in suit is that they were not at
fault and the clearance was as per the RBI guidelines.
Considering the nature of suit, the defendant No. 2 being a
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bank requires to be given an opportunity to contest the suit.
There is delay to file notice of motion but the same can be
condoned by awarding cost. No prejudice will cause to
plaintiff bank incase suit is restored which is decided
exparte. The notice of transfer was not issued to defendant
No. 2 therefore there is a reason to restore the suit and for
the delay for about five months to file the Notice of Motion
the defendant No. 2 has to pay the cost. Hence pass
following order :
ORDER
1. The Notice of Motion is allowed on
payment of cost of Rs. 10,000/
(Rupees Ten Thousand only) to be
paid to the plaintiff within one month
from the date of the order.
2. The suit bearing No. 7406 of 2002
(HC 1061 of 2002) be restored to the
file after the above compliance.
3. Accordingly, Notice of Motion is
disposed of.
(S.S. Nagur)
Date : 11/03/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 11/03/2021
Typed on : 11/03/2021
Signed on : 11/03/2021
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF TYPIST
11/03/2021 & 5.50 pm : Mr. Mohit M. Patange
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 20)
Date of pronouncement of Judgment/ : 11.03.2021
Order
Judgment/Order signed by the P.O. on : 11.03.2021
Judgment/Order uploaded on : 11.03.2021
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