Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2627 OF 2019
IN
S.C. SUIT NO.531 OF 2018
Krishna Fashion World & Ors. ] ...Applicants
IN THE MATTER BETWEEN
Sunil Kanayalal Rochlani ] … Plaintiff
V/s.
Krishna Fashion World & Ors. ] ... Defendants
Appearances :-
Ld. Adv. Ms. Kavita Lalwani for plaintiff.
Ld. Adv. Mr. Deepak Jamsandekar for defendant No.1 and 2
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.20)
DATED : 19th September, 2019
ORAL ORDER
1. The original defendant No.1 and 2 filed this Notice of
Motion for condonation of delay, for setting aside ex-parte decree dated
17.01.2019 and for listing the suit for hearing and final disposal.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of plaintiff to the Notice of Motion. Perused written notes
of arguments filed by applicant/defendant No.1 and 2. Heard both the
advocates.
MHCC01-007209-2019
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3. 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 Notice of
Motion can be condoned?
In the affirmative.
2. Whether ex-parte decree dated
17.01.2019 can be set aside?
In the affirmative.
3. What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of defendant Nos.1 and 2 that Mr.
Ramesh Madan Patel is partner of defendant No.1 Partnership firm.
Notice or writ of summons of the suit are not served to the defendant
Nos.1 and 2. Defendant No.2 Ramesh Madan Patel came to know about
the ex-parte decree when he received a copy of Insolvency Notice No.N/
34 of 2019 filed in the Hon’ble High Court of Bombay.
5. In fact defendant No.1 partnership Firm as well as
defendant No.2 Mr. Ramesh Patel did not receive writ of summons.
6. Defendant No.2 Mr. Ramesh Patel was arrested in CBI,
EOW, Mumbai. He was in police custody from 08.01.2018 to
09.01.2018. Thereafter he was in judicial custody with effect from
09.01.2018 to 01.10.2018. He is released on bail by the Hon’ble High
Court on 28.09.2018. Therefore, he could not receive copy of writ of
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summons and do the needful. He made an application for obtaining the
entire suit proceeding. He received the same through his Advocate on
12.06.2019. The ex-parte decree is passed on 17.01.2019. Therefore,
the Notice of Motion be made absolute.
7. In brief, it is contention of the plaintiff that the suit is
decreed on 17.01.2019. The Hon’ble High Court pleased to issue
Insolvency Notice No.N/34/2019 on 18.04.2019. The said Notice is
served upon the defendant Nos.1 and 2 on 07.05.2019 and defendant
No.3 on 02.05.2019. Therefore, the Notice of Motion is barred by law
of Limitation. All the adverse contentions raised against the plaintiff
are denied. Writ of summons was served upon the defendants and the
defendants had intentionally not file Vakalatnama to delay the
proceedings. The Court issued Writ of summons alongwith the true
copy of the plaint upon all the defendants through RPAD. Writ of
summons are served upon the defendants. Affidavit of service of Writ of
summons dated 13.07.2018 is filed on record. Therefore, Notice of
Motion be dismissed.
8. The ex-parte decree is dated 17.01.2019. This Notice of
Motion is filed on 20.06.2019.
9. Perused photo copy of Judgment passed in Summary Suit
No.531 of 2018 dated 17.01.2019. The said Suit is Summary suit.
10. Perused Article 123 of the Limitation Act.1963.
It provides
30 days time to set aside a decree passed ex-parte or to re-hear an
appeal decreed or heard ex-parte from the date of decree or where the
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summons or notice was not duly served, when the applicant had
knowledge of the decree. Therefore, as per the said Article 123
application can be filed within 30 days to set aside ex-parte decree,
from the date of decree or where the summons or notice was not duly
served, when the applicant had knowledge of the decree.
11. Perused Order 37 Rule 4 of the C.P.C.
It provides that after
the decree, the Court may, under special circumstances, set aside the
decree, and if necessary stay or set aside execution, and may give leave
to the defendant to appear to the summons and to defend the suit, if it
seems reasonable to the Court so to do, and ohn such terms as the
Court thinks fit.
12. As per Article 123 of the Limitation Act the Notice of
Motion is not filed within 30 days from the date of ex-parte decree.
There is delay in filing the Notice of Motion. It is contention of the
Learned Advocate appearing for applicants/ defendant Nos.1 and 2 that
defendant No.2 was in police custody with effect from 08.01.2018 to
09.01.2018t. He was in judicial custody with effect from 09.01.2018 to
01.10.2018.
13. Perused the record. The ex-parte decree is passed on
17.01.2019. Defendant No.2 is served upon a copy of Insolvency Notice
No.N/34 of 2019 on 28.04.2019. The defendant No.2 filed an
application for the certified copy of the suit proceeding. He received
the same on 12.06.2019. This Notice of Motion is filed on 20.06.2019.
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14. Perused Order 9 Rule 13 of Code of Civil Procedure. Its
runs as under:
As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Ex-parte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
15. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
16. The Learned Advocate appearing for applicants mentioned
in the written Notes of arguments filed on 17.02.2020 that this Notice
of Motion is filed under Order 9 Rule 13 of the Code of Civil Procedure
for setting aside the ex-parte order and decree. I am of the opinion that
if the application under Order 9 Rule 13 of Code of Civil Procedure is
filed to set aside the ex-parte decree which is passed in Summary Suit
then such application can be treated under Order 37 Rule 4 of the Code
of Civil Procedure.
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17. Perused Exhibit No.5 filed under Order 37 Rule 2 of Code
of Civil Procedure. It is affidavit of service of writ of summons by
Registered Post A.D. It is filed on 13.07.2018. Mr. Bhimrao Adhav
dispatch Clerk of the Court solemnly affirmed the said affidavit of
service. It is mentioned therein that office on 31.05.2018 received the
Registered A.D card as acknowledgment of service upon defendant No.1
to 3.
18. Perused the written Notes of arguments. It is mentioned
therein that defendant No.2 was in judicial custody with effect from
09.01.2018 to 01.10.2018. It means the said service of writ of
summons is when the defendant No.2 was in judicial custody.
19. Perused affidavit of service of writ of summons Exh.5.
Three Registered A.D. Cards are annexed with the affidavit of service
Exh.5. All the three cards having sealed of the post. First A.D.
Card is having seal of name of defendant No.1. It is having signature
with date 19.05.2018. 1st A.D. Card is having name of defendant No.1.
2nd A.D. Card is having name of defendant No.2. It is dated 19.05.2018.
1st A.D. Card is also dated 19.05.2018. Signatures of 1st A.D. Card
and 2nd A.D. Card are not appearing similar. They are different
signatures from each other. It cannot be concluded after going through
the 1st A.D. Card that who has received it. Seal of name of defendant
No.2 is at 2nd A.D. Card. Defendant No.2 was in judicial custody with
effect from 09.01.2018 to 10.01.2018. After going through the 2nd
A.D. Card it does not appear that the signature thereon of the
receiver is of defendant No.2 and signature of defendant No.2 is
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taken from the office of Jail Authority. Therefore, I am of the
considered view that defendant No.1 and 2 are not served duly with
writ of summons.
20. The Learned Advocate appearing for defendant No.1 and 2
relied upon Judgment of the Hon'ble Delhi High Court in the case of Raj
Kumar Maheshwai Vs. Jyoti Gupta & Ors. Dated 21.10.2011. In the
cited case defendant No.1 therein had filed an application under Order
9 Rule 13 read with Section 151 of the Code of Civil Procedure for
setting aside the judgment and decree dated 11.03.2008 and the order
by which she was proceeded ex-parte. Defendant No.1 was widow. She
was looking after her old age infirm mother-in-law. Her son was minor
when she was in jail and he was studying. According to the applicant
therein she is a teacher and has limited source of livelihood. The
Hon’ble High Court held those circumstances, are good cause/
sufficient cause for non appearing before the Court. It is also held in
case when life and liberty of a person is affected such a person would
take all steps which are available firstly to get herself released on bail
rather than to take steps to defend a civil matter. It is held the
defendant No.1 was prevented from sufficient cause from appearing in
court and for not filing the written statement. Accordingly, the
application under Order 9 Rule 13 of the Code of Civil Procedure was
allowed.
21. The Learned Advocate appearing for plaintiff relied upon
citation of Andhra Pradesh High Court in the case of Karumilli Bharathi
Vs. Prichikala Venkatachalam, AIR 1999 Andhra Pradesh 427. It is held
defendant applicant has to show “special circumstances” under Rule 4
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of Order 37 of Code of Civil Procedure but not the “sufficient cause” in
terms of Section 5 of Limitation Act.
22. The Learned Advocate appearing for the plaintiff relied
upon citation of Hon’ble Bombay High Court in the case of Madhusudan
Shrikrishna Vs. M/s. EMKAy Exports, Mumbai and Ors. 2008(6) Mh.L.J.
797. It is held for setting aside the ex-parte decree in a summary suit. It
is also necessary to make out availability of a good defence and mere
failure to file Vakalatnama and failure to enter an appearance cannot
itself be said to be a special circumstance for setting aside the decree. It
is also held the expression “under special circumstances” in Rule 4 of
Order 37 does not totally exclude the application of the principle behind
Rule 13 of Order 9 to the proceedings for setting aside ex-parte decree
in summary suit.
23. The Learned Advocate appearing for plaintiff also relied
upon citation of Hon’ble Rajasthan High Court in the case of Mohan Lal
Vs. Om Prakash, AIR 1989 Rajasthan 132. It is held meaning assigned
to word “sufficient cause” used in Order 9, Rule 13 and word “special
circumstances” used in Order 37 , Rule 4 of the Code of Civil Procedure
are not synonymous.
24. Perused Order 37, Rule 3 of Code of Civil Procedure. It runs as
under:
“In a suit to which this Order applies, the plaintiff shall,
together with the summons under rule 2, serve on the defendant a copy
of the plaint and annexures thereto and the defendant may, at any time
within ten days of such service, enter an appearance either in person or
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by pleader and, in either case, he shall file in Court an address for
service of notices on him”.
25. Perused Order 37, Rule 4 of Code of Civil Procedure. It
runs as under:
“After decree the Court may, under special circumstances,
set aside the decree, and if necessary stay or set aside execution, and
may give leave to the defendant to appear to the summons and to
defend the suit, if it seems reasonable to the Court so to do, and on such
terms as the Court thinks fit”.
26. If for a moment it is presumed that defendant No.1 and 2
are duly served with writ of summons even though considering the fact
that defendant No.2 was in jail with affect from 09.01.2018 to
01.10.2018, I am of the opinion that under such circumstances and
considering the long period of jail, it is not expected from defendant
No.2 to appear in the matter to defend himself immediately. Therefore,
defendant No.1 and 2 have made out special circumstances and
sufficient circumstances for non appearing in the matter. Therefore, this
is a fit case to condone delay in filing Notice of Motion to set aside the
ex-parte decree. It is contented on behalf of the defendant No.1 and 2
that they have good case on merit. Therefore this is also fit case to set
aside the ex-parte decree.
27. In the facts & circumstances defendant No.1 and 2 can be
directed to appear in the matter. Hence, I record my findings to point
Nos.1 and 2 in the affirmative and point No.3 Notice of Motion is
allowed as under:
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ORDER
Notice of Motion No.2627 of 2019 in disposed of Summary Suit
No.531 of 2018 is hereby allowed as under:
1. Delay in filing the Notice of Motion is hereby condoned.
2. The ex-parte decree in Summary Suit No.531 of 2018
dated 17.01.2019 is hereby set aside.
3. The said Suit No.531 of 2018 is restored and kept on
07.12.2020.
4. Due to Covid-19 Pandemic, it is not proper to direct
defendant No.1 and 2 to appear before the Court in short
period, in the suit.
5. Defendant No.1 and 2 are hereby directed to appear before
the Court on 07.12.2020 to record their appearance before
the Court in the Suit No.531 of 2018.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 19/09/2020 City Civil Court, Gr. MUMBAI
Dictated on : 19/09/2020.
Transcribed on : 14/10/2020.
Signed on : 15/10/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.10.2020 at 14.55 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 19.09.2020
Judgment/order signed by P.O. on 15.10.2020
Judgment/order uploaded on 15.10.2020
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