Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : N/M No. 2420/18 in S/J 46/19 in Suit 1007/16
CNR No. MHCC010078032018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2420 OF 2018
IN
SUMMONS FOR JUDGMENT NO. 46 OF 2019
IN
SUMMARY SUIT NO. 1007 OF 2016
M/s Della Tecnica Interior Design Pvt. Ltd. .. Plaintiff.
Versus
Mrs. Clear Channel Mumbai Pvt. Ltd & Ors. .. Defendants
Appearance :
Ld. Advocate Mily Ghoshal I/b M/s Uni Lex for plaintiffs.
Ld. Advocate Bharucha & Partners for defendants.
CORAM: SMT. S.S. NAGUR,
ADHOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R. No. 13).
DATE : 26th SEPTEMBER, 2019.
: ORDER :
The Notice of Motion is filed by the plaintiff to condone
the delay of 7 days to file Summons for Judgment. The Notice of
Motion is supported by Affidavit of Manoj Kumar Yadav, Company
Secretary of M/s Della Adventures & Resorts Pvt. Ltd. He on oath
stated that he is Company Secretary with one of the group
companies of the plaintiff. He is authorized representative of
plaintiff through a resolution dtd. 29.06.2015. He is fully aware
with the facts of the suit. Writ of Summons is duly served on
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defendant. The Plaintiff came to know that the defendant engaged
lawyers only on 25.07.2016. The suit was posted on 27.11.2017.
The plaintiff prepared and affirmed the summons for judgment on
28.08.2017. On 27.11.2017 the board was discharged. Therefore,
the advocate for the plaintiff filed Notice of Motion on 01.02.2018.
The leave to file Notice of Motion could not be obtained due to
misplacement of the file. Therefore there is delay to file Summons
for Judgment and prayed to condone the delay.
2. The defendant filed reply through affidavit of Mehool
Parekh, the authorized representative of defendant no.1 and
Constituted Attorney of Defendant Nos. 2 to 7. The Defendants
denied the contentions of Notice of Motion to condone the delay.
The Summons for Judgment is sworn on 09.02.2018. Therefore
the contention in the Notice of Motion is not correct. The Writ of
Summons were served on defendant on 15.11.2016. The
defendants filed their appearance on 23.11.2016 itself. They
served notice to plaintiff's advocate about their appearance on the
same date. Therefore the reason shown to condone the delay is
not correct. The explanation filed for 7 days delay is unjustified.
The delay is of more than 1 year. Hence, prayed to reject the
notice of motion.
3. Heard Advocate Mily Ghoshal for plaintiff and Advocate
King Dongerwal for defendant. Perused the contents of Notice of
Motion and reply supported by affidavit. I have also gone through
the record.
4. On perusal of roznama defendant filed appearance after
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service of Writ of Summons on 23.11.2016. The defendant was
directed to inform their appearance to the plaintiff. Advocate Mr.
King for defendant has drawn my attention to the copy of notice in
the reply to the Summons for Judgment that on 23.11.2016 itself
defendant issued the notice informing the advocate for plaintiff
about their appearance.
5. The above document shows that advocate for plaintiff
was aware of the appearance of the defendant. Therefore
Summons for Judgment should have been filed on or before
23.05.2017. Though the month of May has Summer holiday it
should have been filed after opening of the Summer holiday i.e. on
05.06.2017. The Summons for Judgment is filed by the defendant
on 01.02.2018. In the Notice of Motion the plaintiff has contended
only about the 7 days delay on the ground of their knowledge on
25.07.2017.
6. The defendant has filed reply to the Summons for
Judgment. There is delay of more than 12 months to file Summons
for Judgment. The amount claimed by the plaintiff from the
defendant is Rs. 14,17,611/ in respect of interior design and
rectification/modification work done by the plaintiff in the
premises of the defendant. Considering the fact that amount of
recovery is very high, in the interest of justice the delay needs to
be condoned. The defendant can be compensated with cost. He
has already filed reply to the Summons for Judgment and shown
his willingness to contest the suit. Hence, pass following order :
: ORDER :
1. The Notice of Motion is allowed on payment of cost of
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Rs. 7500/ to the defendant to be paid within one
month, failing which Notice of Motion shall stand
dismissed.
2. On payment of above cost within the above period, the
delay caused to file Summons for Judgment is condoned.
3. Accordingly Notice of Motion No. 2420/18 is disposed
off.
( S.S. NAGUR )
AdHoc & Asst. Sessions Judge
City Civil Court,
Date : 26.09.2019. Gr. Bombay.
Dictated on : 26.09.2019
Transcribed on : 27.09.2019
Signed on : 27.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.09.2019 5.00 p.m.
NAME OF STENOGRAPHER : Mrs. Mrs. Aparna V. Lele
Name of the Judge
(With Court Room No.)
HHJ Smt. S.S. Nagur
C.R. No.13
Date of Pronouncement of JUDGMENT/
ORDER
26.09.2019
JUDGMENT/ORDER signed by P.O. on 27.09.2019
JUDGMENT/ORDER uploaded on 27.09.2019
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