Final Order 2

Order Details: Notice of Motion
Pdf Text: 1
MHCC010072842019
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 2656 OF 2019
IN
SUMMARY SUIT NO. 24 OF 2018 (Disposed of)
(CNR NO:MHCC01-007284-2019 )
INDUS PROJECT LIMITED.
Office at 504, Loha Bhavan,
Carnac Bunder, Mumbai – 400 009. … Org. Defendant
V/s
DMSON’S METAL PRIVATE LIMITED.
Having Office at 221-222, Loha Bhavan,
93-P. D’Mello Road, Carnac Bunder,
Mumbai – 400 009 and having registered
Office at 504, Loha Bhavan, P. D’Mello Road,
Carnac Bunder, Mumbai – 400 009. …Org. Plaintiff
Appearance :
Adv. Mr. Rishi Ashok for the Applicant / Org. Defendant.
Adv. Ms. Ankita Pathare for the Respondent / Org. Plaintiff.
CORAM : HHJ DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 23-03-2022.
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ORDER
(Dictated and pronounced in Open Court)
1. Original Defendant in Summary Suit No.24 of 2018 (Disposed of)
has taken out this Notice of Motion for seeking condonation of delay of
30 days in filing application for setting aside ex-parte decree passed on
25.01.2019. For the sake of convenience parties are referred to as per
their status in suit.
2. Perused the Notice of Motion and affidavit along with it. Also,
perused the reply filed by the plaintiff. Heard Ld advocate Mr. Rishi
Ashok. He submits that the writ of summons in suit No. 24 of 2018 was
served on office clerk of plaintiff company who was not entrusted with
the duty to receive such notices or summons. He did not intimate the
same to the responsible officers and as such there was no knowledge to
the defendant company with respect to the suit. He submits that the
service of writ of summons is not as per Rule 2 of Order IXXX of Civil
Procedure Code and hence it is not at all
‘service’ in eye of law. To
support this contention he relied on 2 authorities.
i)
M/s. Shalimar Rope Works Ltd. V/s M/s. Abdul Hussain H.M.
Hasanbhai Rassiwala & Ors. in (1980) 3 S.C.C. 595
ii)
Pravinchandra V/s Murali Agro Products Ltd. in (2005) 4
Mh.L.J. 156
3. Ld. Adv. for the defendant further submits that owing to the lack
of knowledge about suit, the defendant could not appear and defend
the suit. He submits that defendant has substantial case to defend. If the
delay is not condoned, it will suffer irreparable loss.
4.
Per Contra, Ld. advocate for the defendant strongly opposed the
Motion. She submits that the writ of summons was served upon the
defendant on its registered address through Bailiff and that too on a
responsible employee of the defendant who was entrusted to receive the
same. She points out bailiff report and submits that bailiff report bears
acknowledgment of receipt of writ of summons along with stamp of the
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defendant company. She submits that ground put forth by defendant is
not genuine and proper. She submits that this is the delay tactics of the
defendant, to avoid the repayment as per the decree.
5. Ld. Adv. for plaintiff relied upon the authority of Bombay High
Court in the case of
Eskay Enterprises versus Suresh Hinduja in (2005)
3 Mh.L.J. 620 reported and submits that there is no sufficient ground
made out by the Defendant to condone the delay and hence, motion
may be dismissed.
6. Admittedly, the suit was decreed ex-parte on 25/01/2019. It is
the case of Defendant that he got the knowledge of the ex-parte decree
when the Attachment Warrant of this Court was served to company on
01/05/2021. It appears that the summons was served on the Defendant
on 17/01/2018. The Bailiff Report bears stamp of the company
acknowledging receipt of Writ of Summons. There is no relief claimed
for setting aside ex-parte decree in present Notice of Motion nor any
other Notice of Motion is filed in that respect.
7. The present motion is restricted only with respect to Condonation
of Delay in filing application for setting aside ex-parte decree.
Therefore, only the aspect of the delay and sufficient cause is require to
be considered at this stage.
8. The fact of correctness & legality of service of writ of summons
need not to be looked into while deciding present application. Hence,
contentions of both sides on this issue are not dealt with. It can be
considered at appropriate stage. Admittedly, there is delay of 30 days
from the date of knowledge to the Defendant. It is obvious that, if delay
in filling application for setting aside ex-parte decree is not condoned,
defendant would not be in a position to file application for setting aside
ex-parte decree. It may cause prejudice & irreparable loss to the
defendant. It is settled position of law that such short delay, if properly
explained, need to be condoned in interest of justice. The reason put
forth by defendant seems just and proper. The delay does not seem to
be intentional or deliberate. It would be just and appropriate to
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condone the delay subject to certain cost. Hence, I proceed to pass the
following order :-
ORDER
1. Notice of Motion No. 2656 of 2019 is allowed subject to cost of
Rs. 5,000/- (Rupees Five Thousand Only). Cost to respondent/original
plaintiff.
2. The applicant/defendant to file proper proceeding/application for
setting aside ex-parte order within 10 days from this order.
3. Non compliance of the above stated cost and time frame would
entail rejection of this application without reference to this court.
4. Notice of Motion No.2656 of 2019 is disposed of accordingly.
Date- 23/03/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 23.03.2022
Transcribed on : 23.03.2022
Signed on : 25.03.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.03.2022 (01.00 p.m.) Mr. Prasad S. Pednekar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
23.03.2022
JUDGMENT/ORDER signed by P. O. on 25.03.2022
JUDGMENT/ORDER uploaded on 25.03.2022
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