Final Order 4

Order Details: Notice of Motion
Pdf Text: MHCC010059382018
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1827 OF 2018
IN
SUMMONS FOR JUDGMENT NO.515 OF 2014
IN
SUMMARY SUIT NO. 639 OF 2014
M/s. VVR Crushers and Constructions ] … Plaintiff
V/s.
M/s. Gammon India Ltd. ] ... Defendant.
Appearances :-
Ld. Advo Mr. Anand for plaintiff.
Ld. Advocate Mr. Rajesh Maravoor for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.13)
DATED : 16th January, 2021
ORAL ORDER
1. Defendant took out this Notice of Motion to set aside Order
dated 19.03.2018 and to allow the defendant to file reply to Summons
for Judgment.
MHCC010059382018
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in Sum. Suit 639/14
2. Perused Notice of Motion, affidavit in support of Notice of
Motion. Heard Learned Advocate Mr.Rajesh Maravoor for defendant
and perused the statement of plaintiff Advocate made before the then
Presiding Office of this Court on 11.02.2020 that Notice of Motion to
condone delay to file reply to Summons for Judgment may be condoned
on payment of cost.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether order dated 19.03.2018
Presiding Officer without reply of
defendant to the Summons for
Judgment can be set aside ?
In the affirmative.
2 Whether defendant can be permitted to
file reply to the Summons for
Judgment?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the defendant that matter was
posted on 19.03.2018 for reply of defendant to Summons for Judgment.
Defendant could not file reply to the Summons for Judgment because
Advocate who was handling the matter left the firm without handing
over the papers to the other advocate. Associate Advocate Miss Ranjita
Shinde who was handling the matter could not attend the Court on
19.03.2018 as she arrived late from the Small Causes Court. Till she
reaches the Court matter was already called out and adjourned.
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in Sum. Suit 639/14
5. The reply of the defendant is prepared on 21.08.2017. It is
duly notarized on 21.08.2017. Copy of the same is already served to
the plaintiff on 16.04.2018. While reviewing the status of the matters
of Advocate firm of the defendant, it was noticed that this matter was
shown as hearing without reply on 16.04.2018. Therefore, this Notice
of Motion is taken out.
6. Perused Roznama/ Noting dated 11.2.2020 the Advocate
Mr. Anand for plaintiff made statement before the Court which reflects
from the said noting that the Notice of Motion be allowed on payment
of the cost.
7. Perused record. Summons for Judgment No.515 of 2014
was tendered for leave on 28.10.2014. The original Summons for
Judgment tendered on 02.12.2014. On 02.12.2014 Advocate for
defendant admitted that Summons for Judgment is served upon the
defendant on 29.11.2014 which appears from the Roznama / Noting
dated 02.12.2014. It is also mentioned in the said noting that
defendant took out Notice of Motion for dismissal of the suit in view of
arbitration clause in the agreement. Thereafter matter adjourned on
this or that ground time to time.
8. Perused Notice of Motion No.4477 of 2014. Defendant had
taken out the said Notice of Motion for dismissal of suit in view of
arbitration clause under Provisions of Section 8 of the Arbitration and
Conciliation Act. It was also prayed alternatively to frame issues under
Section 9(A) of the Code of Civil Procedure during pending and final
decision of the suit. The said Notice of Motion No.4477 of 2014 is
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disposed by Judgment dated 13.2.2017. It was dismissed. The said
order was challenged before the Hon’ble High Court before Arbitration
Appeal No.23 of 2017 with Civil Application No.25 of 2017. The
Hon’ble High Court is pleased to dispose of said Arbitration Appeal
alongwith Civil Application No.25 of 2017 holding that stay doesn’t
survive. The Hon’ble High Court pleased to dispose of said Arbitration
Appeal on 14.07.2017. It is mentioned in the affidavit in support of
present Notice of Motion that defendant prepared reply on 21.08.2017
to the summons for Judgment.
9. The Learned Advocate for defendant submits at the time of
this dictation that the order passed by the Hon’ble High Court dated
14.7.2017 was challenged before the Hon’ble Supreme Court of India
and the Hon’ble Supreme Court of India pleased to dismiss the Special
Leave Petition on 24.11.2017.
10. After going through the Notice of Motion 4477 of 2014 and
the order passed by the Hon’ble High Court in Arbitration Appeal No.23
of 2017 with Civil Application No.25 of 2017 and going through the
Affidavit in support of the present Notice of Motion, it appears me that
the intention of the defendant not to file reply to the Summons for
Judgment immediately was not intentional. Therefore, to decide the
Summons for Judgment on merit by hearing both the sides, the
defendant can be permitted to file reply to the Summons for Judgment.
Copy of affidavit in reply of defendant to the Summons for Judgment is
annexed with the affidavit in support of this Notice of Motion. Hence
the Order of Proceeding without reply of Summons for Judgment can be
set aside. Therefore, I record my findings to point No.1 and 2 in the
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affirmative and point No.3 the Notice of Motion is allowed as per final
order. Hence following order:
ORDER
Notice of Motion no. 1827 of 2018 in Summons for judgement no. 515
of 2014 in Summary Suit no. 639 of 2014 is allowed as under-
1. Order dated 19-03-2018 mentioned in the noting dated 19-03-2018
proceeding without reply of defendant to the Summons for judgement
is set aside.
2. Defendant is permitted to file reply to the Summons for Judgement
till next date.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 16/01/2021 City Civil Court, Gr. MUMBAI
Dictated on : 16/01/2021
Transcribed on : 18/01/2021
checked on : 18/01/2021
Signed on : 18/01/2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
19/01/2021 at 12.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 16/01/2021
Judgment/order signed by P.O. on 18/01/2021
Judgment/order uploaded on 19/01/2021
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