Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2377/2018 SUIT NO.6984/1997 1
CNR NO.MHCC010076732018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2377 OF 2018
IN
SUIT NO. 6984 OF 1997
M.S.Rajarani Shyamsunder Makharia ...Applicant
Well Products Industries Ltd. .. .. Plaintiff
Versus
M.S.Rajarani Shyamsunder Makharia ...Defendant
Shri.R.C.Dhuru advocate for Applicant.
Shri. Vaishnav advocate for the Plaintiff.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Dist. Judge
CR no. : 32
Dated :10th August 2018
ORDER
1. Applicant taken out this motion for:
a) To set aside exparte decree and judgment dated 18/03/2016
with condonation of delay of 2 years and 5 months .
b) Consequent of granting prayer (a), the warrant of attachment
dated 02/05/2018 in Execution Petition No.07/2018 be stayed or
-- 1 of 7 --
NM 2377/2018 SUIT NO.6984/1997 2
cancelled and revoked.
2. Applicant is the sole proprietress of M/s.Basic Engineering
Company however, entire control, management including handling of
the business was being conducted by her husband. Shri.Shankarlal
Madanlal Sharma was appointed as the constituted attorney for
applicant by her husband. Advocate Shri.D.R,Jhuriya represented
applicant in the matter and filed the written statement on her behalf
affirmed by Shri.Shankarlal Sharma on 21/01/2000. It is further
contention of the applicant that she was not aware about the alleged
dealing and claim of the plaintiff referred in the suit. She came to know
about the exparte decree when warrant of attachment came for
execution on 18/05/2018 till that time she had no knowledge that any
decree has been passed against her. Earlier advocate Shri.Jhuriya not
taken proper care or any steps putting her on guard, in such
circumstances, the exparte decree dated 18/03/2016 is required to be
set aside and motion be made absolute in terms of prayer clause (a)
and (b).
3. Plaintiff filed the reply. Applicant filed a written statement on
21/01/2000. Issues were framed on 10/01/2014, thereafter, matter
was adjourned time to time till 04/03/2015 for filing affidavit of
evidence of plaintiff. On 15/04/2015 plaintiff filed the affidavit of
Shri.Mafatlal Jain along with list of documents. Thereafter, matter was
adjourned for cross examination by applicant. As the applicant and her
advocate remained absent matter was adjourned for argument. Plaintiff
argued the matter and thereafter, matter was posted for judgment and
suit was decreed by order and judgment on 18/03/2016. Applicant and
their advocate did not care to find out and listed the matter in
-- 2 of 7 --
NM 2377/2018 SUIT NO.6984/1997 3
C.R.No.33 till the judgment. Plaintiff had taken out Execution
Application No.73/2018 as per the order dated 05/04/2018, warrant of
attachment of movable and immovable property were issued against the
applicant for recovery of amount of Rs.21,08,787.30. Properties are
already attached. Decree is executed, therefore, before considering the
prayer of the applicant, applicant be directed to deposit the amount of
Rs.21,08,787.30. The plaintiff further stated that the delay of 2 years
and 5 months is not properly explained , hence, motion taken out by the
applicant is time barred. Even after the death of the husband of the
applicant on 15/06/2015, she did not take efforts to find out the matter
in the court or to approach to her advocate, therefore, the grounds
assigned for condonation of delay are false and fabricated. There is no
sufficient ground for condonation of delay for setting aside exparte
decree, hence, motion be dismissed with costs.
4. Heard learned advocate Shri.Dhuru for applicant and advocate
Shri.Vaishnav for plaintiff also perused the rejoinder of applicants.
5. Learned advocate Shri.Dhuru for applicant submitted that the
decree dated 18/03/2016 is exparte. Present suit is for recovery of
Rs.12,08,440/ against applicant Smt.Rajarani Shyamsunder Makharia
who is the sole proprietor and carrying on the business in the name and
style of M/s.Basic Engineering Company at Fort, Mumbai at the time of
filing suit. Writ of summons was duly served on the applicant and in
response to the receipt of summons, applicant appeared before the
court through advocate Shri.J.R.Jhuriya and on behalf of her C.A.
Shri.S.L.Sharma represented before the court.
6. As per Order 9 Rule 13 of the Code of Civil Procedure the
-- 3 of 7 --
NM 2377/2018 SUIT NO.6984/1997 4
grounds on which exparte decree may be set aside.
a) Summons was not duly served upon applicant.
b) Summons was duly served, applicant was prevented by ‘sufficient
cause’ from appearing when the suit was called for hearing.
7. The learned advocate Shri.Dhuru for the applicant submitted that
no notice was issued to the applicant about the transfer of matter from
High court to City Civil Court. Suit was pending before the High Court
and transfer to the City civil Court in October 2012. The transfer of suit
is by statute itself and not by any act of the court. No party can plead
ignorance of law or ignorance of statute, thus, it is not open for
applicant to assert that she had no notice of the transfer of the suit to
the city Civil Court. It was the duty of the applicant to appear before
City Civil Court and make inquiries. While suit was pending before the
High Court, that time written statement was filed by applicant through
advocate and signed by her constituted attorney Shri.S.L.Sharma,
therefore, application of the applicant would be governed by the first
para of 3rd column of Art.123 of the Limitation Act, thus, the starting
point of limitation would be the date of decree and not the date on
which she got knowledge of the decree. In the instant matter, summons
was duly served, date of applicant’s knowledge of the decree is
immaterial and time will run from the date of the decree.
8. In the instant matter, as per the contention of the applicant that
her husband used to maintain all transactions, she was relied on him
without anything more, the neglect of one will be the neglect of other.
Where this applicant does not keep contact with advocate Shri.Jhuriya
by engaging advocate Shri.Jhuriya only applicant is not relieved of her
duties and obligations in the matter but it appears that, applicant has
-- 4 of 7 --
NM 2377/2018 SUIT NO.6984/1997 5
blamed her advocate Shri.Jhuriya. The conduct of the applicant does
not warrant to castigate her as an responsible litigant even after the
death of her husband in 2015. She should have more vigilant by visiting
her advocate to check up the progress of the suit.
9. Advocate for Applicant Shri.R.C.Dhuru placed reliance on:
1. Rafiq & Another Vs. Munshilal & Others. AIR 1981 Supreme
Court 1400.
2. N. Balakrishnan Vs. M Krishnamurthy (1998) 7 Supreme
Court Cases 123.
3. Bhagmal and Others Vs. Kunwarlal and Others (2010) 12
Supreme Court Cases 159.
With due respect the ratio laid down in above citation is not
applicable for want of facts.
10. Advocate for Plaintiff Shri.Vaishnava placed reliance on:
1. Shakti Bioscience Ltd.,Gujarat Vs. Mody Chemi Pharma
Pvt.Ltd. Mumbai & another 2017(1)Mh.L.J.
Admittedly, money suit for recovery with interest towards sale of
goods tried as a summary suit. Under Order XXXVII Rule 4 of CPC make
it clear that whenever decree is passed in summary suit, court has
special power to set aside the decree under special circumstances and to
grant leave to applicant to appear to the summons and defend the suit,
if it seems reasonable to the court to do so and on such terms as the
court thinks fit Article 123 of the Limitation Act does not apply to an
application made by the applicants against whom a decree has been
passed in a summary suit when he was precluded from appearing by
reason of the fact that leave to defend was not given.
-- 5 of 7 --
NM 2377/2018 SUIT NO.6984/1997 6
2. Shailesh Sudhir Joglekar Vs. Nirmal Kumar Gulzarilal Jain
2006(4) ALL MR 279.
Exparte decree under Provincial Small Cause Court Act, 1887
now application for setting aside exparte decree must be accompanied
by a deposit in court of the amount due under the decree.
11. In the instant matter, it is not the case of he applicant that
summons was not served on her, therefore, applicant could not claim
that limitation under Art.123 of the Limitation Act started from the date
of knowledge of the exparte decree to her. As applicant is in default
and negligent, therefore, the reasons assigned by the applicant are not
of ‘sufficient cause’ for condonation of delay of 2 years and 5 months,
hence, not entitled to set aside the exparte decree and judgment dated
18/03/2016. As such the other prayers of the applicant in the motion
cannot be considered.
12. In view of above discussion, I pass the following order.
ORDER
Notice of Motion No.2377/2018 is dismissed with costs.
Date : 10/08/2018 (Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 10/08/2018
Signed by HHJ on : 10/08/2018
-- 6 of 7 --
NM 2377/2018 SUIT NO.6984/1997 7
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/09/2018 at ( 5.00p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of JUDGMENT/ORDER 10/08/2018
JUDGMENT/ORDER signed by P.O.on 10/08/2018
JUDGMENT/ ORDER uploaded on 26/09/2018
.
-- 7 of 7 --