Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.1699/2019
MHCC010046412019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1699 OF 2019
IN
SUMMARY CIVIL SUIT NO. 442 OF 2018
(CNR NO.MHCC01-002486-2018)
Diligent Road Carriers Limited )...Plaintiff
Versus
1. Balmukund Polyplast Pvt. Limited )
2. Mr. Ajay Kumar Agarwala )...Defendants
Appearances :-
Learned Advocate Deepak Karde for plaintiff.
Learned Advocate Arun Kumar for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 17/07/2023.
ORDER
1 This notice of motion is taken out by the defendants for
condonation of delay in filing
vakalatnama and to allow them to tender
their appearances on record. It is the contention of defendants that the
writ of summons was not served on them at the relevant time. The
defendant No.2 was not carrying any business and was not present at
the premises. After receiving knowledge of the pendency of this suit, he
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appeared in the Court for seeking permission to tender the appearance
with condonation of delay.
2 The plaintiff resisted the contention by filing reply,
contending that the defendants have committed fraud and suppressed
facts. It is their contention that the defendants have failed to make true,
candid and full disclosure of all relevant facts and attempted to mislead
this Court. It is the contention of the plaintiff that the summons is duly
served on the defendants, but they failed to appear within 10 days.
Therefore, there is a delay of 330 days, which remain unexplained. He
denied that the defendants were not present at the address and
defendant No.2 was not carrying on business of defendant No.1. Lastly,
the plaintiff prayed for dismissal of notice of motion with costs.
3 The defendants have filed rejoinder and the documents
annexed contending that there was a litigation filed against the
defendants in the Court of Calcutta, where the ex-parte order was
passed against them and contended that injunction order is still
continued against the defendants which is relating to the title of
premises i.e. address of defendants and prayed for grant of notice of
motion.
4 Heard rival parties at length.
5 The learned advocate for plaintiff has submitted that they
have submitted detailed reply alongwith citation, same may be treated
as their full argument. The learned advocate for defendants have
pointed out that the writ of summons is not served upon them, he just
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brought into the notice that the plaintiff has annexed xerox copies of
cheques issued by defendant No.2 in favour of plaintiff, which bears his
signature and the signature appearing on the acknowledgment of
service affidavit filed by the plaintiff, is totally different, which can be
noticed, by comparing both of them. Therefore, I am of the view that
there is no proper service of the writ of summons against defendant
No.2 and he has not received the writ of summons. The learned
advocate for plaintiff is unable to explain, who has received the
summons on behalf of defendant No.1. He can’t explain whose
signature is appearing on the acknowledgment filed under Exh-3.
Therefore, I am of the view that prima facie there is no proper service,
consequently, the defendants are entitled for grant of permission to
them to appear before this Court.
6 The plaintiff is relying on following judgments. Abdulla
Umar Haji Ismail Merchant V/s Subai Mura Rabari and others reported
in 1998(3) Mh.L.J. 91 and S. P. Chengalvaraya Naidu V/s. Jagannath
reported in AIR 1994 SCC 853 passed by the Hon’ble Supreme Court. I
have gone through the cited cases, these are relating to the facts, where
it is found that party is misleading the Court and not disclosing true
facts. The observations in the cited judgments are considering to the
facts of that particular case which is not applicable to the instant case.
Prima facie there is no proper service, therefore, the defendants are
entitled to get an opportunity to appear before this Court and to tender
their appearance. Consequently, they are also entitled for condonation
of delay, if any caused. It is to be noted that the defendants are having
their residence and business address at Calcutta, at a long distance from
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Mumbai. Therefore, lenient view is required to be taken while
condoning the delay. It is but natural that the delay might have been
caused by them for appearing before this Court. In the result, I pass the
following order :-
ORDER
1. Notice of Motion No.1699/2019 in Summary Civil Suit
No.442/2018, is hereby allowed.
2. Delay stands condoned.
3. Defendants are permitted to appear in the proceeding.
4. Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 17/07/2023 C.R. No.15
Dictated on : 17/07/2023
Transcribed on : 18/07/2023
Draft corrected on : 18/07/2023
Signed on : 18/07/2023
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“Certified to be true and correct copy of the original signed order”.
24/07/2023
at about 11.05 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 17/07/2023
Order signed by Hon'ble Judge on : 18/07/2023
Order uploaded on : 24/07/2023
at about 11.05 a.m.
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