Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1430/2018 in Suit No. 3455/2012 1 ORDER
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1430 OF 2018
IN
S.C. SUIT NO. 3455 of 2012
MR. GULAM MURTUZA CHAUDHARY … Plaintiff
Vs.
JBM MA AUTOMOTIVE PVT. LTD. AND ANR. … Defendants
Appearances :
None for plaintiff.
Ld. Advocate Mr. Vijay Upadhyay defendant no. 1 present.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO. 15)
DATE : 05th April, 2022.
ORDER
This Notice of Motion is filed by defendant no. 1 and requested to
set aside exparte Judgment and Decree dated 24072017. The
defendant no. 1 further requested to condone delay for moving Notice
of Motion. It is the submission of defendant no. 1 that actually as per
Judgment and Order dated 24072017, the defendants were jointly and
severely held liable for repayment of amount to the plaintiff. Actually,
from the letter communication / document it is clear fact on record that
the defendant no. 2 has admitted liability and therefore it was necessary
only to give directions to defendant no. 2 to pay the amount of
plaintiff. He further submitted that the plaintiff has suppressed material
facts. However, the suit was not maintainable for want of cause of
-- 1 of 3 --
NM No. 1430/2018 in Suit No. 3455/2012 2 ORDER
action with all these submission the defendant requested to set aside
exparte decree dated 24072017. The plaintiff filed reply to the
Notice of Motion and strongly opposed to allowed the Notice of Motion.
The plaintiff submitted that Vakalatnama was tendered from defendant
no. 1 on record on 14112014. Therefore Summons for Judgment was
serve on him on 04042016. The defendant no. 1 was very well aware
about the exparte order dated 03052016 and Judgment dated 2407
2017. Therefore the plaintiff strongly opposed Notice of Motion.
The defendant has filed some documents in support of statement
in the Notice of Motion. He has also relied upon Judgment of Hon'ble
Delhi High Court in New Bank of Indian V/s Master Steel Marketing Co.
date of Judgment 08081995. In the said Judgment the defendant has
moved application for setting aside decree, because the writ of
summons was published against him in paper publication. Therefore, as
per defendant he could not get copy of plaint, documents and could not
tendered his appearance. Accordingly, the Hon'ble High Court has given
permission to defendant to filed Written Statement.
Here the case in hand the defendant tendered Vakalatnama.
Therefore, for some dates he appeared on record. This shows that the
defendant no. 1 was very well acquainted about pending of the suit
against him and stage of the suit. However, here the defendant has
appear after service of summons. Therefore, the facts of the citation are
different than the case in hand. The defendant was very well acquainted
about pending of the suit against him. After his appearance on record
1st exparte order was passed, thereafter the suit is decreed exparte.
Accordingly, on 24072017 exparte decreed is passed. The defendant
has not shown any reason why he could attend proceeding. He just
mentioned reason of the decree on the ground that only the defendant
no. 2 would have direct to pay the amount to the plaintiff. But the
-- 2 of 3 --
NM No. 1430/2018 in Suit No. 3455/2012 3 ORDER
reason of delay inspite of knowledge of pending suit is not explained by
him. The suit is decreed in the year 2017. It is old suit than 10 years.
There is no reason from defendant to show that why he could not
attend suit the defendant just remain absent. Therefore, the defendant
is not entitled to set aside exparte decreed dated 24072022.
Accordingly, following order is passed in Notice Motion.
F. R. S. R. following order is passed:
ORDER
1. Notice of motion No. 1430 of 2018 is rejected.
2. Notice of motion No. 1430 of 2018 stands disposed of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 05/04/2022. City Civil Court, Gr. Bombay
Dictated on : 05/04/2022,
Transcribed on : 05/04/2022,
HHJ signed on : 06/04/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
07/04/2022 05.38 p.m. Mr. Jitesh Suresh Shinde
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
05/04/2022
JUDGEMENT /ORDER signed by P.O. on 07/04/2022
JUDGEMENT /ORDER uploaded on 07/04/2022
-- 3 of 3 --