Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 2667/2019 in Suit No. 7428/2005 1 ORDER
MHCC010073172019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2667 OF 2019
IN
S.C. SUIT NO. 7428 OF 2005
Pan India Network Infravests Pvt. Ltd. … Plaintiff
Vs.
Thakoor Electro Mechanical Pvt. Ltd. … Defendants
Appearances:
Ld. Advocate Mr. Sanket for DH present.
Ld. Advocate Mr. Rajapurkar for JD present.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO. 15)
DATE : 30th March, 2022.
ORDER
This Notice of Motion is filed by defendant with request to
condoned delay if any for filing Notice of Motion. The defendant also
requested to set aside exparte decree dated 20102015 passed in
Summary Suit no. 7428/2005. The defendant further requested to stay,
Execution Application no. 431/2015 which is filed by plaintiff. It is the
submission of defendant that in the said suit the defendant was appear
through advocate M/s. Bhaishankar Kanga and Gridharilal. The
defendant has provided necessary instructions to the said advocate.
Thereafter, the said firm M/s. Bhaishankar Kanga and Gridharila was
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NM No. 2667/2019 in Suit No. 7428/2005 2 ORDER
dissolved. Therefore, he has appointed another Amarchand and
Mangaldas and Suresh A. Shroff and Company. The said Amarchand
and Mangaldas and Suresh A. Shroff and Company filed Vakalatnama
on record on behalf of defendant. After necessary instructions to the
advocate written statement and counter claim was prepared by the
defendant. The defendant was awaiting from the instructions of the said
advocate. The defendant was under bonafide impression that the
advocate will communicate him for filing written statement and counter
claim, but the advocate not made any communication. Therefore, the
suit has been proceeded in absence of defendant, consequently exparte
Judgment is passed against him. This fact came to know him when he
received warrant of attachment dated 19052018. The defendant has
shown factual matrix in the Notice of Motion and submitted that there
was number of letter communications between parties. But the plaintiff
has suppressed those letter communication from the court, played fraud
and obtained exparte decree. With this submission the defendant
requested to set aside exparte decree and allow him to file written
statement as well as counter claim.
2. The plaintiff strongly opposed Notice of Motion by reply. It is the
submission of plaintiff that the defendant failed to set aside decree
within 30 days from the date of decree. There is huge delay for filing
Notice of Motion. The plaintiff has also mentioned reply to the facts in
the Notice of Motion and lastly submitted that after exparte decree the
defendant has raise number of technical objections, with this
submission, the plaintiff requested to reject Notice of Motion.
3. Here, the defendant came with the story that the advocate
engaged by him in the year 2007 has not communicated him about
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NM No. 2667/2019 in Suit No. 7428/2005 3 ORDER
filing of written statement. Consequently, the suit is proceed exparte
against defendant. From the statement of defendant it appears that he
has thrown blame on advocate and submitted the said advocate has not
informed him about filing of written statement in the year 2007.
Therefore, the defendant could not contest suit. In support the
defendant placed reliance on the ratio of Hon'ble Supreme Court in 1)
S. P. CHENGALVARAYA NAIDU V/S JAGANNATH SC date of Judgment
27/10/1993, 2) GOWRISHANKAR V/S JOSHI AMBA SHANKAR
FAMILY TRUST SC date of Judgment 22/02/1996, 3) KISHAN LAL
BARWA V/S SHARDA SAHARAN AND ANOTHER writ case no.
4788/2015 date of Judgment 18/02/2015 Alahabad High Court.
4. The question in citation no. 3 was raise before executing court.
Here, the defendant has filed Notice of Motion though it is also raised in
Execution Application, But facts are different in citation no. 1 and 2 the
Hon'ble Supreme Court has discussed about decree obtained by fraud
and on that ground opportunity was granted to defendant to contest the
suit.
5. From the citation of Hon'ble Supreme Court it can be said that if
the decree is obtained by playing fraud then certainly the sufferer
entitled to contest suit and to set aside decree. The defendant has
produced copy of decree. The decree is passed exparte, because
defendant was failed to file Written Statement. Believing documents of
the plaintiff decree is passed in the year 2015. From pleading of
defendant himself it appears that he was having knowledge about
pending of the suit, but just by throwing blame on advocate the
defendant wants to set aside the decree passed in the year 2015. The
defendant has engaged advocate in the year 2007 and certainly it is
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NM No. 2667/2019 in Suit No. 7428/2005 4 ORDER
unbelievable to consider that the defendant would have waited till 19
052018 till receipt of attachment warrant for the instructions of
advocate. From 2007 to 2018 the gap is about 10 to 11 years and the
defendant has waited for 10 to 11 years just for filing Written
Statement for the instructions of advocate. The fact is not believable
though the defendant has shown sum letter communication with
submission that the plaintiff has suppressed facts from the court and
obtained decree by playing fraud. This is the summary suit and only in
special circumstances, the decree can be set aside. The defendant was
having knowledge of the pending of suit against him, but from 2007 till
2018 he kept mum and all of sudden now the defendant is saying that
the plaintiff has obtained decree by fraud. When the defendant was
having knowledge then why from 2007 he has not taken followup of
the suit and just waiting for instructions of advocates for 10 to 11
years. This fact is unbelievable. On the contrary after receipt of warrant
from the executing court the defendant has came on record by throning
blame on advocate which is not acceptable. Accordingly, following
order is passed.
F. R. S. R. following order is passed:
ORDER
1. Notice of motion No. 2667 of 2019 is hereby dismissed.
2. Notice of motion No. 2667 of 2019 disposed of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 30/03/2022. City Civil Court, Gr. Bombay
Dictated on : 30/03/2022,
Transcribed on : 30/03/2022,
HHJ signed on : 05/04/2022.
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NM No. 2667/2019 in Suit No. 7428/2005 5 ORDER
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
07/04/2022 3:45 p.m. Mr. Jitesh Suresh Shinde
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
30/03/2022
JUDGEMENT /ORDER signed by P.O. on 05/04/2022
JUDGEMENT /ORDER uploaded on 07/04/2022
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