Final Order 1

Order Details: Notice of Motion
Pdf Text: NM NO.2747/19 Sum.Suit 1282/2018 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2747 OF 2019
IN
SUMMARY SUIT NO. 1282 of 2018
(CNR NO.: MHCC010075762019)
Shri.Naresh Govind Vaze ...Plaintiffs
Versus
Industrial Development Bank of India
& Anr. ...Defendants
Appearances:
Plaintiff in person.
Advocate Mr.Pandit for Defendants.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATE : 23rd OCTOBER 2019
ORDER
This Notice of motion is for condonation of delay for 5 days to file
vakalatnama.
2. Heard Ld. counsel for defendant and plaintiff in person.
3. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to condone the delay of 05 days to
file appearance?
Yes
2. What order ? As per final order
-- 1 of 4 --
NM NO.2747/19 Sum.Suit 1282/2018 2
REASONS
AS TO POINT NOS.1 &2.
4. The Ld. counsel for defendant has submitted that after various
departmental clearance the matter was assigned to him. The suit
summons was served on 05/12/2018 on defendant. On 15/12/2018 the
Advocate moved the court to file vakalatnama. Since the regular court
was on leave the vakalatnama was filed before in charge court. But the
record shows that the summons was served on 30/11/2018 hence there
is delay of 5 days to file vakalatnama ,therefore, this application.
5. The plaintiff in person has strongly objected to this motion.
According to the plaintiff the defendant should have taken out chamber
summons but instead the defendant had taken out notice of motion
which is wrong proceedings. The mandate of Order 37 does not allow
the Court to extend time to file vakalatnama. It was the duty of the
defendant to file vakalatnama within 10 days from the date of service
which they have failed to file and therefore now the Court cannot allow
the defendant to file vakalatnama. According to plaintiff this motion
should be rejected and decree be passed in his favour. To support his
contentions plaintiff has relied on Messrs. Tailors Priya, a firm Vs.
Messrs. Gulabchand Danraj, a firm, AIR 1963 Calcutta 36.
6. From the record it can be seen that there is delay of 05 days to
file vakalatnama on behalf of defendant. The defendant has taken
ground that because of the time taken in official clearance and
procedures the delay is caused. The roznama shows that this case is
strongly contested by the both sides and plaintiff as well as Advocate of
defendant is present on each and every date. According to plaintiff as
-- 2 of 4 --
NM NO.2747/19 Sum.Suit 1282/2018 3
per City Civil Rules the defendant ought to have taken out chamber
summons but they have taken out notice of motion which is wrong
proceedings. This argument has no substance as this court has already
granted leave to register the motion.
7. Further the plaintiff has made contentions that once the
defendant fails to file his appearance within time then the Court cannot
extend that time. In the case of Messrs. Tailors Priya, a firm (Supra)
the Hon’ble High Court of Calcutta has held that, “By Art 159 of the
Indian Limitation Act, 1908 an application for leave to appear an
d to defend the suit must be made within 10 days from the date of the
service of the writ of summons. No such application was made within the
time prescribed. Consequently, the trial Judge was bound to refuse the
leave. The application for extension of time to make the application for
leave to defend was misconceived.” After perusal of whole decision, it is
respectfully submitted that the said decision is not applicable to the
present case as in this case the defendant has not applied for extension
of time to file appearance but to condone the delay to file appearance
and as per the provision of Order 37 Rule 3 (7) of the Code of Civil
Procedure such application is tenable.1 The defendant has shown
sufficient cause to condone the delay in filing the vakalatnama.
Therefore, point No. 1 is answered as 'Yes' and following order is
passed.
ORDER
1. Notice of Motion No.2747 of 2019 is allowed.
2. The delay of 05 days to file appearance of defendant is condoned
subject to cost of Rs.300/ to be paid to the District Legal Services
-- 3 of 4 --
NM NO.2747/19 Sum.Suit 1282/2018 4
Authority, Mumbai.
3. On payment of cost, vakalatnama shall be taken on record.
4. Notice of Motion No.2747 of 2019 is disposed of accordingly.
(M.S.LONE)
Judge,
Date:23/10/2019 City Civil Court,Gr. Bombay
Dictated on : 23/10/2019
Transcribed on : 23/10/2019
Signed on : 23/10/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/10/19 at 3.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
23/10/2019
Judgment/Order signed by P.O. on 23/10/2019
Judgment/Order uploaded on 24/10/2019
-- 4 of 4 --