Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.2241/2019 in Summary Suit No.4436/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2241 OF 2019
CNR NO.: MHCC010061512019
IN
SUMMONS FOR JUDGMENT NO. 245 OF 2017
IN
SUMMARY SUIT NO. 4436 OF 2013
Ion Exchange (India) Ltd. ...Plaintiff
Versus
D.S. Gupta Construction Pvt. Ltd. and another ...Defendants
Appearances:
Advocate Mr. H.K. Menghani for the plaintiff.
Advocate Ms. Yasmin Sarang for defendant No.1.
Advocate Pankhi Sanghvi for defendant No.2.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 27th SEPTEMBER, 2019.
ORAL ORDER
1. Defendant No.2 has contended that summons was served upon
defendant No.2 on 17.10.2017 but the employees of the defendant No.2
Company were outside the city on account of various festive occasions
and returned back in December, 2017. Defendant No.2 has further
stated that their advocate started drafting of leave to defend in second
week of January but advocate could not contact defendant No.2, hence
requested for time on 26th March, 2018 from the Court. Defendant No.2
has further stated that advocate left the office and file could not be
traced and there was no communication between defendant No.2 and
their advocate upto a week prior to the next date of the case i.e. 19th
July, 2018. Defendant No.2 has further contended that on account of
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file not available, the new appointed advocate could not make proper
submissions before the Court and Court passed an order to proceed
without reply of defendant No.2. Defendant No.2 has further stated that
between the period March, 2018 to January, 2019, advocate was unable
to trace the file pertaining to the matter and there was no proper
communication between the advocate and representative of the
defendant No.2 and therefore, leave to defend could not be filed.
Defendant No.2 has further stated that delay in taking out the present
Notice of Motion is not intentional and stated that if motion is not
allowed, it will cause irreparable loss to defendant.
2. Plaintiff has filed reply and stated that defendant No.2 has not
shown bonafide by filing application for leave to defend alongwith
Notice of Motion. Plaintiff has further contended that from the
beginning, advocate of defendant No.2 till filing appearance by the
present advocate, was the same and there was no change of advocate at
material time since from the beginning. Plaintiff has contended that
advocate Manubarwala was appearing for defendant No.2 since
beginning. Plaintiff has further stated that advocate Ms. Vinita
Dandekar never filed Vakalatnama for defendant No.2 in this suit.
3. It appears defendant No.2 served with summons for judgment on
17.10.2017 and present Notice of Motion filed on 11.02.2019. Hence, it
appears that there is huge delay in filing leave to defend. As per Order
XXXVII of the Code of Civil Procedure, defendant has to file reply or
leave to defend within 10 days. According to defendant No.2, the file of
their case not traced out and due to other reasons there was delay in
filing leave to defend. It appears that the present suit is filed for
recovery of more than Rs.23,00,000/. Considering the fact that
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defendant is the Company and it might had happened that there was
miscommunication or noncommunication between defendant and his
advocate which resulted into such long delay and that there is nothing
to show that delay is intentional and at the same time for such long
delay, plaintiff should not suffer, it will be proper to allow this Notice of
Motion subject to compensatory cost to be given to plaintiff. Hence,
following order:
ORDER
1. Notice of Motion No.2241 of 2019 is allowed, subject to cost of
Rs.20,000/ to be given by defendant to plaintiff.
2. Notice of Motion No.2241 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 27.09.2019. City Civil Court,
Gr. Bombay.
Dictated on : 27.09.2019
Transcribed on : 27.09.2019
Signed on : 27.09.2019
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:4: N.M. No.2241/2019 in Summary Suit No.4436/2013
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01.10.2019 At 12:23 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
27.09.2019
Judgment/Order signed by P.O. on 27.09.2019
Judgment/Order uploaded on 01.10.2019
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