Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010067782019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2476 OF 2019
IN
SUMMARY SUIT NO.1391 OF 2017
(1) M/s Taksha Space Pvt. Ltd. Through ..Applicants
(Orig.Defendant
No.1, 2 and 3)
IN THE MATTER BETWEEN
M/s. Fancy Glass Industries
Pvt. Ltd. ...Plaintiff.
V/s.
1. M/s Taksha Space Pvt. Ltd. & Ors. ..Defendants
Appearances :-
Mr. S. M. Suryavanshi, Ld. Adv. for plaintiff.
Mr. Makarand Gandhi, Ld. Adv. for defendant No.1 to 3.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 23rd April, 2021
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ORAL ORDER
1. Defendant Nos.1 to 3 took out this Notice of Motion for
condonation of delay in filing affidavit in reply to the Summons for
Judgement No.101 of 2019 on record.
2. Perused Notice of Motion, affidavit in support of Notice of
motion, reply of plaintiff to the notice of motion.
3. Heard Learned advocate Mr. S. M. Suryavanshi for plaintiff.
None appeared for defendant. Therefore argument of defendant is
closed as per Roznama dated 16.03.2021.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether delay in filing affidavit in reply of
defendant Nos.1 to 3 to the Summons for
judgment can be condoned ?
In the affirmative.
2. Whether affidavit in reply of defendant Nos.1
to 3 to the Summons for Judgement can be
taken on record ?
In the affirmative.
3 What Order ? NM is allowed as
per final order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the defendants that defendant
No.2 Mr. Kinner Kanu Nayak filed Notice of Motion and affidavit in
support of Notice of Motion for himself and for defendant Nos.1 & 3.
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6. Summons for Judgment is served upon defendants on
13.03.2019. Defendant No.2 is Director of the defendant No.1
Company. Defendant No.2 is also husband of the defendant No.3. The
said project mentioned in the Summons for Judgment was handled and
concluded by Mr. Dhaval Atul Barot, Director of M/s. Taksha Spaces Pvt
Ltd. Said Mr. Dhaval Atul Barot left the Company. Therefore, most of
time consumed in understanding the matter. Defendant No.2 used to
travel extensively during the said period. Therefore, there is delay in
filing the reply to the Summons for Judgment.
7. In brief, it is contention of plaintiff that there is no
documentary proof to support the contention of the defendants
mentioned in the affidavit in support of Notice of Motion. Defendant
No.2 created false story to get order from the Court. Therefore, Notice
of Motion be dismissed.
8. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendantand the defendant
may at any time within ten days from such service enters an appearance
either in person or by pleader and he shall file in Court an address for
services of Notice on him.
9. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
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and the amount classified and stating that in his belief there is no
defence to the suit.
10. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
11. According to defendant Nos.1 to 3 copy of the Summons
for Judgment is served upon them on 13.03.2019. This Notice of
Motion is registered on 05.07.2019. Affidavit in support of Notice of
Motion is affirmed on 27.06.2019. Reply filed to the Summons for
Judgment is affirmed on 27.06.2019. There is endorsement overleaf
the reply of defendant Nos.1 to 3 that plaintiff received copy on
20.08.2019 and defendant No.4 received copy on 07.11.2019.
12. Perused Order 37 Rule 3 Sub Rule 7 of the Code of Civil
Procedure. It runs as under:
“The Court or Judge may, for sufficient cause
shown by the defendant, excuse the delay of
the defendant in entering an appearance or in
applying for leave to defend the suit”.
13. As per Order 37 Rule 3 Sub Rule 4 of Code of Civil
Procedure defendant did not file reply within 10 days from the date of
service of summons for judgment. There is delay in filing the reply.
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Considering the grounds mentioned in the affidavit in support of notice
of motion regarding delay, I am of the opinion that delay can be
condoned. Hence, I record my findings to point no. 1 and 2 in
affirmative and to Point no.3 Notice of motion is allowed as per final
order. Hence, following order:
ORDER
Notice of Motion no. 2476 of 2019 in Summary suit no. 1391 of 2017 is
allowed as under-
1. Delay in filing reply of defendant nos. 1 to 3 to the Summons for
Judgement no. 101 of 2019 is hereby condoned.
2. Reply of defendant nos. 1 to 3 to the Summons for Judgement no.
101 of 2019 be read and recorded.
3. Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 23-04-2021 City Civil Court, Gr. MUMBAI
Dictated on : 23-04-2021
Transcribed on : 27-04-2021
Checked on : 29-04-2021
Signed on : 29-04-2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.04.2021 at 03.40 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 23.04.2021
Judgment/order signed by P.O. on 29.04.2021
Judgment/order uploaded on 29.04.2021
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