Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 1369/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2068 OF 2018
(CNR NO.MHCC010067112018)
IN
SUMMARY SUIT NO.1369 OF 2017
Anil Gopal Bajaj ...Plaintiff
V/s
Milestone Interactive Private Limited & Anr. ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 22/02/2019
Adv. Ms.Kavita Lalwani for plaintiff.
Adv. Mr.Reema Oak for defendants.
ORDER BELOW NOTICE OF MOTION NO.2068/18
1. This Notice of Motion is taken out by the defendant no.2 for
condoning the 171 days delay in filing the Vakalatnama. The plaintiff
has resisted to the said Notice of Motion by filing reply.
2. Read the Notice of Motion and reply.
3. The learned advocate for the defendant has submitted that
the plaintiff has already filed Company Petition No.531/15 for winding
up against the defendant no.1 Company for realization of the dues in
the Hon'ble High Court. It is submitted that the said petition has been
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admitted and the Company has been directed to be wound up. It is
submitted that in view of said order dated 122018 and as per the
provisions of Section 446 of Companies Act the present suit ought not
to be proceeded with. It is submitted that the suit is already proceeded
exparte against the defendants by order dated 24/2/2018 and the
plaintiff has filed the claim affidavit and documents. But, before passing
the exparte Judgment by the Court, defendant no.2 has taken out the
present Notice of Motion. It is submitted that there is no service upon
the defendant no.2 and the defendant no.2 has excellent case on merit.
It is submitted that if the defendant no.2 is not allowed to file the
Vakalatnama and to take the part in the proceedings, serious prejudice
would cause to him. Therefore, it is requested to condone the delay in
filing the Vakalatnama and to set aside the exparte order against
defendant no.2.
4. Per contra, the advocate for plaintiff has submitted that the
defendant have not shown the sufficient and bonafide reasons for
condoning the delay. It is submitted that the suit is already fixed for
exparte Judgment as the defendants did not appear in the suit with
malafide intention. It is submitted that if the defendant no.2 is
permitted to file the Vakalatnama of his advocate, the case will prolong
unnecessarily and serious prejudice would cause to the plaintiff.
Therefore, it is requested to dismiss the same.
5. I have duly considered the above submissions of both the
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sides so also, I have gone carefully through the case record. It appears
that the plaintiff has filed the present suit for the recovery of amount of
Rs.11,42,000/ alongwith interest. The plaintiff tendered the service
affidavit on 24/1/2018. On the same date the Court passed the exparte
order against the defendants, so also, on the same date plaintiff has
filed the claim affidavit at Exhibit 6 and List of documents at Exhibit 7.
It appears that when the case was fixed for exparte Judgment the
defendant no.2 has taken out the present Notice of Motion on
4/6/2018. Considering the fact as mentioned in the affidavit filed by
defendant no.2 that the Suit summons is not served upon him and that
he has a good case on merits, it is just and desirable to consider the
request of the defendant for condoning the delay.
6. It is well settled that the Court has to adopt the liberal
approach while considering the prayer of condonation of delay.
Duration of delay is insignificant the Court has to take into account if
there is a acceptable or pardonable explanation. The primary function
of the Court is to adjudicate the disputes between the contesting parties
and to advance substantial justice. The rules of limitation are not made
to harm the valuable rights of he parties. The discretion is given to the
Courts to condone the delay and that discretion should be exercised to
advance substantial justice. Considering the reason mentioned by the
defendants in the affidavit so also, considering the fact that the
defendant no.2 has given the sufficient cause for not appearing in the
suit, the delay caused in filing the Vakalatnama by the advocate for
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defendant no.2 needs to be condoned. In my opinion the delay caused
in filing the Vakalatnama by the advocate for defendant no.2 is not
intentional or malafide. Considering the all aspects of the case the
interest of justice requires to allow the defendant no.2 to file the
Vakalatnama of his advocate and to take the part in the proceedings,
subject to costs to the plaintiff. In the result, following order:
: ORDER :
1. Notice of Motion no.2068/18 is allowed.
2. The delay caused in filing the reply to Vakalatnama the pleader of
defendant No.2 is condoned, subject to costs of Rs.5000/ payable by
defendant No.2 to the plaintiff, on or before the next date.
3. The payment of cost is condition precedent.
4. Notice of Motion no.2068/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
21/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 21/2/19.
Date of Transcription : 21/2/19.
Date of signature : 22/2/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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NM In SC 1369/17 Oral Order 5
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/2/19 5.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
21/2/19
Judgment/order signed by P.O on 22/2/19
Judgment/order uploaded on 22/2/19
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