Interim Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1020/2020 in S.J. No. 270/19 in 1 Order.
Comm. Suit No. 708/21.
MHCC010029002020
Presented on : 06-03-2020
Registered on : 06-03-2020
Decided on : 18-02-2022
Duration : 1 years, 11 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1020 OF 2020
IN
SUMMONS FOR JUDGMENT NO. 270 OF 2019
IN
COMMERCIAL SUIT NO. 708 OF 2021
(ORIGINAL SUMMARY SUIT NO. 784 OF 2018)
Jindal Saw Ltd. ...Applicant
(Org. Defendant)
IN THE MATTER BETWEEN
Trans Asian Shipping Services Pvt. Ltd. ...Plaintiff
Versus
Jindal Saw Ltd. ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 18th FEBRUARY, 2022.
Shri Anupam Surve, Advocate for the defendant.
Shri Kunal Vaishnav, Advocate for the plaintiff.
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N/m No. 1020/2020 in S.J. No. 270/19 in 2 Order.
Comm. Suit No. 708/21.
ORDER
1. The defendant has taken out present notice of motion for
setting aside the order dated 13/01/2020 fixing Summons for
Judgment No. 270/2019 for hearing with reply of the defendant.
Perused notice of motion and affidavit in reply. I have gone through
the suit proceeding. Heard learned counsel Shri Anupam Surve for the
defendant and learned counsel Shri Kunal Vaishnav for the plaintiff.
2. It is contention of the defendant that the plaintiff's
advocate did not serve upon the defendant registered summons for
judgment on 31/07/2019 to enable him to file reply for leave to defend.
There is no delay on the part of the defendant to file the reply. The
defendant had sought inspection of documents to the plaintiff on
06/01/2020, but the same has not been provided by the plaintiff. The
defendant has a very good defence and grave harm and prejudice will
be caused to him if reply is not allowed to be filed in Summons for
Judgment. The defendant also relied upon Rule 119(4) of the Bombay
City Civil And Sessions Court Rules, 1948 (for short, 'the Rules') for the
purpose of asserting the circumstances warranting dismissal of the suit
for failure of the plaintiff to show sufficient cause for not having
proceeded with the suit.
3. The plaintiff opposed notice of motion by raising following
grounds in affidavit in reply :
The notice of motion is devoid of merit. This Court has no
authority to recall its own order. Notice of motion is barred by
principles of res judicata. Reliance on Rule 119(4) of the Rules by the
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Comm. Suit No. 708/21.
defendant is untenable. Summons for judgment was affirmed on
31/07/2019 and registered on 23/11/2019. This Court has rejected the
defendant's contention regarding nonservice of registered summons for
judgment in impugned order dated 13/01/2020. Actually, summons
for judgment was served on the defendant on 31/07/2019 and he was
aware of the legal mandate to file his reply/leave to defend before the
expiry of ten days i.e. until 09/08/2019. This Court granted total 167
days time to the defendant for filing leave to defend, but the defendant
misused this period. Present notice of motion is filed by raising
frivolous and misconceived grounds. The plaintiff further elaborated
sequence of events in his affidavit in reply and prayed for dismissal of
the notice of motion with exemplary costs.
4. Learned counsel Shri Anupam Surve for the defendant
reiterated the contents in affidavit in support and placed reliance upon
observations of Hon'ble Bombay High Court in case of SKY Shipping
and Anr. V/s. Vodafone India Limited 2016 SCC OnLine Bom 3580.
He referred paras 2, 6, 11 to 16 of this citation and submitted that the
plaintiff has to satisfy the Court the reasons preventing him from taking
out the Summons for Judgment within six months from filing of the suit
and the Court has to exercise the judicial discretion after recording
satisfaction for condoning the delay in taking out summons for
judgment beyond six months period. According to him, registered
summons for judgment was not served upon the defendant and
inspection of documents was not given. He prayed that notice of
motion may be made absolute.
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Comm. Suit No. 708/21.
5. Learned counsel Shri Kunal Vaishnav referred details in
affidavit in reply. He explained chronology of event with the help of
roznamas annexed with affidavit in reply. He further submitted that the
defendant should have filed leave to defend on or before 09/08/2019
after collecting copy of summons for judgment on 31/07/2019. He
relied upon observations of Hon'ble Bombay High Court in Rentworks
India Pvt. Ltd. V/s. India Infoline Ltd. (Civil Appellate Jurisdiction
Writ Petition No. 9999/2013 decided on 28/10/2013). In this
citation, no reply order was passed against the defendant and notice of
motion and summons for judgment were kept for hearing by learned
City Civil Judge. The defendant had taken out a notice of motion for
setting aside the said order with request for taking his affidavit in reply
on record. Learned City Civil Judge had allowed the notice of motion
by imposing cost of Rs.25,000/. While dealing with the legality of this
order, Hon'ble Bombay High Court observed in para 8 that in Order
XXXVII itself there is no provision for the trial Court setting aside its
own order refusing to grant leave to defend in summary suit. It is
further observed that notice of motion taken out for recall of the order
is not maintainable and it was dismissed by setting aside order of
learned City Civil Judge. With the help of this citation, learned counsel
Shri Kunal Vaishnav prayed for dismissal of notice of motion.
6. After considering rival contentions, it is explicit that
summons for judgment was filed on 31/07/2019 and leave to register
the same was granted. Advocate for the defendant received the copy of
draft summons for judgment on the same day. Meanwhile, summons
for judgment came to be registered by giving No. 270/2019 to the
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N/m No. 1020/2020 in S.J. No. 270/19 in 5 Order.
Comm. Suit No. 708/21.
same. As the defendant failed to file affidavit in reply in Summons for
Judgment No. 270/2019, my learned predecessor passed order to
proceed without reply of the defendant and fixed the matter for
summons for judgment hearing as per order in roznama dated
13/01/2020. The defendant is objecting this order mainly on two
grounds (i) registered summons for judgment is not served upon the
defendant and (ii) inspection of documents was not provided to the
defendant by the plaintiff.
7. Copy of summons for judgment is served upon the
defendant and the defendant can take note of registration number after
it is registered. Therefore, the first ground is not acceptable. So far as
the second ground is concerned, the defendant can seek inspection of
documents under Order XI of the CPC after leave to defend is granted.
The suit is proceeded by following procedure applicable to ordinary suit
after leave to defend is granted by virtue of Order XXXVII Rule 7 of the
CPC. Before granting leave to defend, all developments in the summary
suit are exclusively governed by procedure under Order XXXVII of the
CPC. For this reason, the second ground is not open for consideration
as a valid ground to justify the delay in filing affidavit in reply in
summons for judgment.
8. In addition to it, failure of the defendant to seek leave to
defend within ten days period from the date of service of summons for
judgment results into accrual of right in favour of the plaintiff to get the
judgment forthwith as per Order XXXVII Rule 3(6)(a) of the CPC. This
right of the plaintiff cannot be defeated by relying upon the grounds
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Comm. Suit No. 708/21.
raised by the defendant. Furthermore, the defendant is not entitled to
avail the benefit of Order XXXVII Rule 3(7) of the CPC due to his
appearance in the matter much prior to filing of summons for judgment
by the plaintiff and he had sufficient opportunity to apply for leave to
defend the suit. As the present matter was not posted for dismissal
order before filing of summons for judgment, the plaintiff did not face
the situation which would require him to convince the Court sufficient
causes for not proceeding with the suit. Therefore, SKY Shipping's
citation is not applicable to the factual scenario of the case in hand. In
Rentworks India Pvt. Ltd.'s case, Hon'ble Bombay High Court has dealt
with identical issues and it is squarely applicable to the case in hand.
There is no scope to set aside the order dated 13/01/2020 passed by my
learned predecessor. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1020/2020 is dismissed.
2. The proceeding of N/m No. 1020/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 18/02/2022. Mumbai.
1. Dictated online on : 18/02/2022.
2. Signed on : 18/02/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1020/2020 in S.J. No. 270/19 in 7 Order.
Comm. Suit No. 708/21.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/02/2022. 5.18 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 18/02/2022.
Judgment/Order signed by P.O. on 18/02/2022.
Judgment/Order uploaded on 18/02/2022.
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