Order 1

Order Details: Notice of Motion
Pdf Text: NM In Sum.1312/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1888 OF 2018
(CNR NO.MHCC010061662018)
IN
SUMMARY SUIT NO.1312 OF 2017
The Acme Thread Co.Pvt.Ltd. ...Plaintiff
V/s
Gajanan R.Harad ...Defendant
Coram :His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 18/12/2018
Adv. Mr.J.R.Mishra for plaintiff.
Adv. Mr.Dipak Jamsandekar for defendant.
ORDER BELOW NOTICE OF MOTION NO.1888/18
1. This Notice of Motion is taken out by the defendant for condoning
the delay of 50 days in filing the Vakalatnama by the pleader of the
defendant. The plaintiff has resisted to the said application by filing reply.
2. Read the application and reply.
3. Heard. The learned advocate for the defendant has submitted that
the suit summons has not been served on the defendants and the matter has
been proceeded exparte. It is submitted that the defendant received the suit
summons with the copy of plaint on 17/1/2018 but he could not cause his
appearance due to various reasons. It is submitted that he was arrested by
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Bhyander Police Station and he was in Police Custody from 10/10/2017 to
13/10/2017 and thereafter in Magisterial custody from 13/10/2017 to
17/1/2018. It is submitted that the Sessions Court at Thane granted bail to
him and therefore, he could not appear in the abovesaid Summary suit. His
mental status was disturbed and he was looking after the documents for
filing the Notice of Motion. It is submitted that there is a delay in filing the
Vakalatnama of 50 days. It is neither intentional nor deliberate. It is
submitted that the defendant is not liable to pay any amount to the plaintiff
and if the delay is not condoned, serious prejudice would cause to the
defendants. Therefore, it is requested to make the Notice of Motion,
absolute.
4. Per contra, the learned advocate for the plaintiff has submitted
that there is no sufficient explanation from the side of plaintiff for condoning
the delay. It is submitted that the defendant wants to prolong the matter on
one and another pretext and with that malafide intention Notice of motion is
filed. Lastly, it is requested to reject the Notice of Motion.
5. I have duly considered the above submissions of both the sides so
also, I have gone carefully through the case record. It appears that though
the defendant has admitted that the writ of summons has been received by
him on 17/2/2018 it appears that he was in police custody and then in
magisterial custody for a long time and thereafter, he was released by the
Sessions Court, Thane, in regular Bail Application no.109/18. It appears that
he was not in mental status to engage the pleader to defend himself, within
time. It appears that the explanation put forth by the defendant appears
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genuine and can be considered for condoning the delay because it is well
settled law that the prayer of condonation of delay should be considered by
the Courts with liberal approach.
6. Considering the above position on record, in my opinion, the
defendant has shown sufficient cause for condoning the delay. Thus, the
interest of justice requires to allow the notice of motion. In the result,
following order:
: ORDER :
1. Notice of Motion no.1888/18 is allowed.
2. The delay caused in filing the Vakalatnama by the pleader of the
defendant in the abovesaid Summary Suit is hereby condoned subject to
costs of Rs.5000/ payable by defendant to the plaintiff.
3. The payment of costs is condition precedent, after the payment of
costs the advocate for defendant can file his Vakalatnama and take the part
in the proceedings.
4. Notice of Motion No.1888/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
18/12/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 18/12/18.
Date of Transcription : 18/12/18.
Date of signature : 31/12/18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
31/12/18 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
18/12/18
Judgment/order signed by P.O on 31/12/18
Judgment/order uploaded on 31/12/18
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