Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1515/18 in Sum. Suit 400/15
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1515 OF 2018
IN
SUMMARY SUIT NO. 400 of 2015
CNR NO.: MHCC010047372018
Sion Finance and Leasing Pvt. Ltd. …Plaintiff
Versus
Khandu K. Avhad … Defendant
Appearances:
Advocate Ms. Saumya for the Plaintiff.
Advocate Mr. Shriram S. Redij for Defendant.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATED : 1ST OCTOBER 2019
ORDER
This is Notice of motion for condonation of delay for 219 days to
file application for setting aside exparte Judgment and Decree dated
29.07.2017 with other ancillary reliefs.
2. Before proceeding further, it is necessary to note down the
essential facts which have transpired in this suit. In this case, defendant
filed appearance thereafter the Summons for Judgment was filed by
plaintiff. The Summons for Judgment was served on 21.09.2015 to
defendant. The defendant did not file leave to defend within time. The
notice of motion no. 782 of 2016 was filed by defendant for
condonation of delay to file leave to defend. The notice of motion was
filed on 22.04.2016 but thereafter till 12.11.2016 the advocate for
defendant did not furnish his arguments hence the notice of motion was
-- 1 of 6 --
2 NM 1515/18 in Sum. Suit 400/15
dismissed. Thereafter, the defendant and his counsel remained absent
and on 14.04.2017 this Court passed conditional order on Summons for
Judgment granting conditional leave to defend to defendant, subject to
payment of Rs. 80,00,000/ (Rs. Eighty Lacs) in Court within eight
weeks from the date of order. The defendant did not complied with that
order and ultimately on 29.07.2017 the suit was decreed.
3. Heard Learned counsel for defendant and Learned counsel for
plaintiff.
4. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to condone the delay of 219 days
to file this notice of motion?
No
2. Whether there are special
circumstances to set aside the
exparte Judgment and Decree
dated 29.07.2017?
No
3. What order? As per final order
REASONS
AS TO POINT NOS.1 TO 3
5. The Learned counsel for defendant has submitted that the
advocate for defendant remained absent on the dates. The plaintiff's
wife was suffering from medical problems and she was undergoing
treatment with doctor. The plaintiff required to take her to hospital and
consulting doctor, frequently. The plaintiff was under bonafide
impression that his advocate is attending the matter. The advocate was
also, whenever contacted, used to inform him about future dates. Due
-- 2 of 6 --
3 NM 1515/18 in Sum. Suit 400/15
to absence of his advocate, his notice of motion no. 782 of 2016 was
dismissed as uncontested. Thereafter, the exparte order was passed on
24.04.2017. The defendant has good case on merits. The defendant was
obtaining necessary permission from Government Authorities for
plaintiff company. The defendant has no loan transaction with plaintiff
company. The plaintiff company has not filed any copy of loan
application, sanctioned letter or loan agreement. The suit is not
maintainable in summary form. The plaintiff company has not filed any
money lending license. Therefore, this application.
6. To support his case, Learned Counsel for defendant filed copy of
dismissal order of notice of motion no. 782 of 2016, copy of conditional
order of S/J No. 281 of 2015, copy of exparte Judgment, copies of
medical papers pertaining to wife of defendant and relied on
Madhusudan Shrikrishna Vs. M/s. Emkay Exports, Mumbai & Ors. :
2008 (6) Mh.L.J. 797.
7. The Learned counsel for plaintiff has replied to this application
and had stated that this is suit for recovery of loan amount of Rs.
85,00,000/ (Rs. Eighty Five Lacs) along with interest. Defendant was
given ample opportunity from time to time to contest the suit. The
conditional order was also given to defendant to file his defence. The
defendant did not comply with that order. The Court passed the decree
after perusing the documents filed on record. Thereafter, 9 months just
to avoid execution of that decree, the defendant has filed this
application. The defendant has no merits. It is true that defendant was
doing some liasoning work for plaintiff company. The plaintiff company
has paid Rs. 25,00,000/ (Rs. Twenty Five Lacs) to defendant as
professional fees. The loan was given as per oral agreement between
-- 3 of 6 --
4 NM 1515/18 in Sum. Suit 400/15
parties. The defendant has signed the balance confirmation letters.
Hence, application be rejected.
8. From the record it can be seen that after filling appearance, the
Summons for Judgment was served to defendant. The defendant failed
to file reply within time hence notice of motion no. 782 of 2016 was
filed to condone the delay. The defendant did not pursue that notice of
motion and it was dismissed. The record further shows that the learned
counsel for defendant was absent since 16.12.2016 till passing of ex
parte Judgment and Decree dated 29.07.2017. The documents which
are annexed with this notice of motion shows that the wife of defendant
was under medical treatment for about five months. The medical
documents are from 21.04.2015 till 09.07.2015, which means they are
much prior to 12.11.2016 when the advocate for defendant was present
before the Court. At that point of time, there was no submission made
by the defendant's advocate about the illness of the wife of defendant.
As the medical documents are not of the period when defendant and his
advocate were absent they are of no use and will not help the defendant
to satisfy this Court about his reason of remaining absent. In fact, the
medical documents are not of the period during which the defendant's
advocate was absent.
9. Learned counsel for defendant has relied on the following
authorities:
Madhusudan Shrikrishna Vs. M/s. Emkay Exports, Mumbai & Ors. :
2008 (6) Mh.L.J. 797, the Hon'ble High Court of Bombay has observed
that the expression “special circumstances” includes a good case to
defend on merits. After perusal of whole authority, it is respectfully
submitted that the authority is not applicable to the present case as in
-- 4 of 6 --
5 NM 1515/18 in Sum. Suit 400/15
this case the defendant has failed to make out special circumstances.
10. The record shows that ample opportunity was given to defendant.
In his absence, the conditional leave was granted to him vide order
dated 24.04.2017. The defendant did not followed or complied with
that order. Thereafter three months, the exparte Judgment and Decree
was passed, after perusal of documents on record. The medical
documents are not of the period when defendant remained absent.
Apart from this sole reason defendant had not stated any other reason
for his absence. There is no sufficient cause or reason to condone the
delay. The defendant has not made out any special circumstances to set
aside the exparte Judgment and Decree. Therefore, point nos. 1 and 2
is answer as 'No' and following order is passed :
ORDER
1. Notice of Motion No.1515 of 2018 is dismissed with cost.
2. Notice of Motion No. 1515 of 2018 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 01/10/2019 City Civil Court,Gr. Bombay
Dictated on : 01.10.2019
Transcribed on : 03.10.2019
Signed on : 04.10.2019
-- 5 of 6 --
6 NM 1515/18 in Sum. Suit 400/15
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/10/2019 11.23 a.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Shri. M.S.Lone
(C.R.NO.28)
Date of Pronouncement of
Judgment/Order.
01/10/2019
Judgment/order signed by P.O on 04/10/2019
Judgment/order uploaded on 14/10/2019
-- 6 of 6 --