Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1954 OF 2019
IN
S.C. SUIT NO.1646 OF 2017
Chirag Damani ] … Plaintiff
V/s.
Shree Vaishnav Industries Pvt. (L) ] ... Defendant
Appearances :
Mr. B.N. Jadhav, Ld. Adv. for plaintiff.
Mr. Talreja, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 28th January, 2020
ORAL ORDER
1. Defendant took out this Notice of Motion to set aside ex
parte decree under Order 9 rule 13 of Civil Procedure Code.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, affidavit in reply of plaintiff. Heard both sides.
MHCC01-005429-2019
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3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether exparte decree dated
11.03.2019 is liable to be set aside ?
Yes, in the
affirmative.
2. What Order ? Notice of motion is
made absolute.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the defendants that, deponant
Dinesh Shersingh Agarwal is one of the Director of the defendant
Company. He came to know about this matter when he received notice
dated 8.5.2019 alongwith the copy of the decree. Prior to receipt of the
said Notice, the defendant Company was not aware about the writ of
summons. He is unable to identify from the Postal A/D Card signature
of the receiver, as the Company Stamp mentions that the Postal
Authority obtained stamp of Company factory address which is at
Wada, Thane. If his servant had received the said writ of summons but
the said servant, being uneducated didn't inform him about such receipt
of writ of summons. He obtained certified copies of the entire
compilation. There is another Affidavit of Service dated 18.01.2019 for
Notice to admit and Notice to produce documents which was sent at the
Chembur address, however the postal envelop had returned back with
endorsement “LEFT”.
5. The plaintiff did not reissue Notice to produce documents
at the defendant factory address at Wada, Thane. Plaintiff did not issue
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writ of summons at the address of Wada, Thane. Plaintiff had
exchanged several emails with him but the plaintiff did not inform him
about the preent suit through email. Plaintiff was aware about the
Company's change of address at Vikhroli, and also the Comapny's
factory address at Wada, Thane. The plaintiff deliverately suppressed
the material fact from the Court.
6. The exparte decree is dated 11.03.2019. Plaintiff applied
for copy of decree on 12.03.2019. There is no delay in filing the Notice
of Motion for setting aside the exparte decree.
7. In brief, it is contention of the plaintiff that Notice of
Motion is not maintainable. Defendant has not made out case to grant
of reliefs in the Notice of Motion. Defendant was aware of passing of
the Decree. Defendant has deliberately did not mention the date of
which it came to know of the Decree. This Notice of Motion is barred
by law of limitation. All the adverse contentions are denied. When the
writ of summons alongwith true copy of the plaint served on defendant
on 18.9.2017, the defendant was available at Chembur address. The
defendant has admitted that its servant received writ of summons along
with plaint and affixed the defendant's rubber stamp with Wada
address. The defendant is attempting to take shelter claiming that the
servant is uneducated. There is presumption of proper service when it
is made through postal department. The plaintiff was not aware the
change of address to Vikhroli until passing of the exparte decree. Even
the legal notice dated 25.09.2015 (Exh.15) was addressed to the
defendant at Chembur address and the same is received by it and
responded through defendants advocate letter dated 30.10.2015. There
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is no mention in the reply letter dated 30.10.2015 of either the Wada
factory address or the Vikhroli address where the defendants Directors
are claimed to be sitting. Therefore, there is proper service of writ of
summons. Hence, Notice of Motion be dismissed.
8. The Learned Advocate appearing for plaintiff relied upon
citation of the Hon'ble Supreme Court of India. The first citation is of
Hon'ble Supreme Court Cases 754 in the case of TVC SKYSHOP
LIMITED Vs. RELIANCE COMMUNICATION AND INFRASTRUCTURE
LIMITED reported (2013) 11 SCC. It is held Special circumstances for
setting aside exparte decree in Summary Suit are those which must be
shown to exist which prevented defendant from applying for leave to
defend.
9. The second citation is also of Supreme Court of India in
the case of Rajni Kumar Vs. Suresh Kumar Malhotra and another,
AIR 1322. It is held therein under Order 37 rule 4 defendant has to
show not only special circumstances which prevented him from
appearing or applying for leave to defend but also the facts which
would entitled him leave to defend.
10. The Learned Advocate appearing for plaintiff has submitted
that both the citations are relied upon by plaintiff only with a view to
bring to the notice of the Court on the point of service of writ of
summons.
11. On the contrary the Learned Advocate appearing for
defendant submitted that both the citations are not applicable as the
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matter in both the citations are pertaining to the Summary Suit and in
the present case there is no question of Summary Suit. I have gone
through both the citations. Matter in both the suits are pertaining to
the Summary Suit.
12. This is not Summary Suit. According to the plaintiff the
Notice of Motion is not maintainable.
13. Perused Order 17 Rule 2 and 3 of the Civil Procedure Code.
It runs as under:
“Rule 2. Procedure if parties fail to appear on day
fixed. “Where, on any day to which the hearing of
the suit is adjourned, the parties or any of them fail
to appear, the Court may proceed to dispose of the
suit in one of the modes directed in that behalf by
Order IX or make such other order as it thinks fit.
Where the evidence or a substantial portion of the
evidence of any party has already been recorded
and such party fails to appear on any day to which
the hearing of the suit is adjourned, the Court may,
in its discretion proceed with the case as if such
party were present.”
“3. Court may proceed notwithstanding either party
fails to produce evidence, etc. Where any party to a
suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to
the further progress of the suit, for which time has
been allowed, the Court may notwithstanding such
default,
(a) if the parties are present, proceed to decide the
suit forthwith; or
(b) if the parties are, or any of them is, absent,
proceed under rule 2.”
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14. As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Exparte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
15. According to the defendant writ of summons are not served
to the defendant. There is no valid service of writ of summons.
Therefore, exparte decree be set aside.
16. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called
on for hearing, the Court may make an order that the suit be dismissed.
17. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
18. In view of the above referred provisions, I am of the
opinion that this Notice of Motion for setting aside exparte decree is
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maintainable. Therefore, I do not find substance that this Notice of
Motion is not maintainable.
19. According to the Learned Advocate appearing for plaintiff
this Notice of Motion is barred by law of limitation. Therefore, on this
sole ground the Notice of oMotion be dismissed. Exparte decree is
passed on 11.03.2019. This Notice of Motion is filed on 03.06.2019.
20. Perused Article 123 of the Limitation Act, 1963. It provides
30 days from the date of the decree or where the summons or notice
was not duly served, when the applicant had knowledge of the decree
to set aside a exparte decree.
21. As per Article 123 of the Limitation Act, an application can
be filed to set aside the Exparte decree within 30 days from the date of
the decree or where the summons or notice was not duly served, when
the applicant had knowledge of the decree.
22. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisons of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
23. According to the defendant if writ of summons are received
by its servant then its servant being uneducated did not inform to the
defendant about the receipt of said writ of summons. It is further
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contention of the defendant that defendant came to know for the first
time about this matter when the deponent received notice dated
8.5.2019 alongwith copy of the decree through post.
24. Perused address of the defendant mentioned in title clause
of the plaint. It is of Chembur, Mumbai. Perused affidavit of service
dated 18.01.2019. The closed envelope was sent to the defendant at
Chembur address. It is returned without service with endorsement
“Left”. It means on 13.12.2018 or in the Month of December, 2018
defendant was not available at the addressed of Chembur, Mumbai.
Perused affidavit of service dated 18.09.2017. It is having one
acknowledgement receipt. It is addressed to the defendant at Chembur
addressed but the acknowledgement shows that there is seal of
defendant having address of Wada, District – Thane.
25. Perused Order 5 rule 20 of the Civil procedure Code. It
appars from the record that plaintiff did not adopt provisions under
Order 5 rule 20 of the Civil Procedure Code to serve defendant with
writ of summons by substitute service.
26. According to the defendant, if the writ of summons are
received by the servant of the defendants but the servant being
uneducated did not inform to the defendant about the same. The
defendant is Private Limited Company. Therefore defendant cannot
take stand that his servant did not inform the same to the defendant.
Defendant has admitted that writ of summons are served to the
defendant through its servant. If for a moment it is presumed that writ
of summons served to the defendant under such circumstances, it can
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be inferred that defendant did not appear in the matter as its servant
did not inform about the writ of summons. Therefore, there is no valid
service of writ of summons to the defendant. There is delay in filing the
Notice of Motion to set aside the said exparte decree. Considering the
facts and circumstances, the said exparte decree can be set aside by
imposing some costs. Hence, I record my findings to point No.1 and 2
in the affirmative and point 3 the Notice of Motion is allowed as per
final order. Hence following order:
ORDER
Notice of Motion 1954/19 is hereby made absolute as under.
1. Delay in filing Notice of Motion to set aside exparte decree
dt.11/03/2019 is hereby set aside subject of cost of Rs.5000/.
2. Time granted to defendant to pay the said cost to the plaintiff or
deposit it in the court till 24/02/2020.
3. Both Parties are hereby directed to remain present before the
court on 11/03/2020.
4. Matter be posted for filing written statement of defendant on
11/03/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 28/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 27 & 28/01/2020
Transcribed on : 05/02/2020
Checked on : 05/02/2020
Signed on : 05/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.02.2020 at 02.55 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 28.01.2020
Judgment/order signed by P.O. on 05.02.2020
Judgment/order uploaded on 13.02.2020
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