Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No. 1564-2018 in L C SU No. 800-2015
MHCC010048712018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO.1564 OF 2018
in
L C SUIT NO. 800 OF 2015
The Director V.J.B. Udyan & Zoo MCGM ...Plaintiff
Versus
M/s. K.P. Enerprises & Another .... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 9th DECEMBER, 2021.
Appearance:
-
Shri. Rahul Mahadik; Ld Advocate for plaintiff.
Shri. Sachin Dere; Ld Advocate for defendants.
ORAL ORDER
1) Defendants have taken out this Notice of Motion for setting aside
the ex parte proceed order dtd.10/1/2018 and for condonation of delay in
filing written statement and permitting defendants to file their written
statement on record.
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2 NM No. 1564-2018 in L C SU No. 800-2015
2) Perused the notice of motion, affidavit in support of NM, plaint
and documents annexed with the plaint and reply of the plaintiff. Heard Ld
Advocate for defendants and Ld Advocate for plaintiff.
3) Ld Advocate for defendants argued that the defendant No.1 is a
partnership firm and defendant Nos. 2 and 3 are its partners. The writ of
summons was issued to the defendant No.2 by speed post and it was returned
back with the remark ‘not claimed’. Therefore, defendant No.2 was not aware
about the pendency of the present proceeding. The writ of summons issued to
the defendant No.3 was served upon the defendant No. 3’s mother on
11/10/2017. However, defendant Nos. 2 and 3 were busy in business schedule
and defendant No.3 was at his native place in Gujarat in December 2017.
Defendant No.3 came to know about the present suit and he contacted to the
defendant No.2. Thereafter, immediately defendants have taken out present
notice of motion. Defendants are having good defence on merit. Therefore, Ld
Advocate for defendants submitted that notice of motion be made absolute.
4) On the other hand Ld Advocate for plaintiff argued that
defendants intentionally avoided the service of writ of summons. There is no
just explanation for the delay in taking out notice of motion for setting aside
ex parte order and delay in filing their written statement. Therefore, notice of
motion be dismissed.
5) From the perusal of the plaint it appears that plaintiff filed the
present suit for money decree in the year 2015. From the writ of summons it
appears that the writ of summons was served to the mother of defendant No.3
on 11/10/2017. The reason for delay is not challenged by the plaintiff.
Therefore, from the affidavit in support of draft notice of motion it appears
that defendants have satisfactorily demonstrated a valid reason for their non
appearance earlier and for not filing the written statement within 30 days and
the reason for delay is exceptional and beyond control of the defendants. It
appears that the reason is adequate and enough. There is no inordinate delay
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3 NM No. 1564-2018 in L C SU No. 800-2015
also. As such there appear sufficient cause for setting aside ex parte proceed
order dtd.10/1/2018 and for condonation of delay and the present matter
comes within the purview of exceptionally hard case. The present matter is for
money decree of Rs.6,98,726/-. Therefore, in order to give fair opportunity to
the defendants to contest the suit on merit it appears necessary to set aside the
ex parte proceed order and permit the defendants to file their written
statement as sought. Delay and inconvenience caused to the plaintiff can be
compensated by awarding costs.
6) Considering the matter on record and above discussion Court hold
that the defendant succeeded to plead and satisfactorily demonstrate a valid
reason for their previous non appearance and for non filing written statement
within 30 days and sufficient and exceptional cause for condonation of delay
is demonstrated by the defendants. Therefore, in order to give fair opportunity
to the defendant to contest the suit the notice of motion deserves to be made
absolute. Hence, Court proceeds to pass following order:-
ORDER
1) Notice of Motion No.1564/18 is made absolute subject to
condition of payment of cost of Rs.5,000/- (Rs.Five Thousand
only) by the defendants to the plaintiff on or before next date.
2) On payment of cost amount within prescribed period, written
statement of the defendants be taken on record.
3) Notice of Motion No. 1564/18 is disposed of accordingly.
Date: 09/12/2021. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & typed on : 09/12/2021.
Checked on : 10/12/2021.
Signed by HHJ on : 10/12/2021.
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4 NM No. 1564-2018 in L C SU No. 800-2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/12/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
09/12/2021
JUDGMENT/ORDER signed by P.O.
on
10/12/2021
JUDGMENT/ORDER uploaded on 10/12/2021
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