Order 1

Order Details: Notice of Motion
Pdf Text: NM No.243518 1 in Summary Suit No.76417
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2435 OF 2018
(CNR NO. MHCC010079082018)
IN
SUMMARY SUIT NO.764 OF 2017
Tata Services Ltd.
Bombay House, Mumbai1 … Plaintiff
Versus
Navaz B. Patuck & Others ....Defendant
Appearance:
Shri. Tejas Shah, Advocate for Plaintiff.
Shri. Rahul Raut, Advocate for defendant.
CORAM : HER HONOUR ADHOC CIVIL JUDGE
SMT. C.P.JAIN (C.R.NO.40)
DATED : 27th November, 2019.
ORDER
1) This Notice of Motion is taken out by Defendant No.4 praying to
set aside the Exparte order dated 27/02/2018 passed against him and to
condone the delay caused for filing his vakalatnama and to defend the suit.
2) In affidavit in support of Notice of Motion, it is averred by the
defendant No.2 that the plaintiff had filed summary suit No.764/17 to get
decree against the defendant jointly and severally to pay the plaintiff sum of
rs.19,26,093/ together with future interest. From the website of the Hon'ble
Court he came to know about the suit and Exparte order dated 27/02/2018
passed against defendant No.2. Upon making inquiry with department of the
court he was informed to apply for certified copy and accordingly upon his
application he received certified copy of the suit. He came across the fact that
two addresses mentioned in the cause title are Bombay Stock Exchange and
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NM No.243518 2 in Summary Suit No.76417
Voltas address. The Bombay Stock Exchange address is not related to Trust.
The Voltas address is registered office of the Trust. However, the Trust has not
received any post or papers in the above matter. In order to understand the
implications of the suit, he took advise from advocate and accordingly moved
the present Notice of Motion. The writ of summons is not received by the
defendant. There is delay of 96 days in moving the application. However, the
delay is unintentional and is caused due to peculiar circumstances and the
bonafide mistake. Therefore, he has prayed for allowing his motion.
3) The plaintiff has resisted the application and denied all the
averments in the motion. Accordingly to him, the defendants are properly
served and are in fact acquainted with the proceedings. The deponent of the
affidavit of Notice of Motion has moved the present motion as the defendant
No.3 for himself. The trustees are jointly made parties in suit. In absence of
other trustees, present motion is not entertainable. The averments in the
motion with respect to the fact that the defendant No.2 learnt about the suit
through website of the court is exfacie incredible and unbelievable. The Trust
has its office at Voltas International House so also at Bombay Stock Exchange.
The defendants have received correspondence and dealt with matters from the
Bombay Stock Exchange address. In fact the address of Voltas International
House has been substantially locked with sole intention to avoid
correspondence. The bailiff of the court had pasted a notice of writ of summons
outside Bombay Stock Exchange address and also Voltas International House
address. Therefore, the claim of defendant No.2 is Exfacie, untenable and
cannot be accepted. Further, according to him there is delay of 114 days and
not 96 days as is averred by the defendant No.2. The motion is not moved
bonafide. The delay caused is not explained properly. For aforesaid reasons, he
has prayed for dismissing the motion.
4) Heard both the Ld Advocates. Perused the record. Though it was
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NM No.243518 3 in Summary Suit No.76417
averred in Notice of Motion that there is no proper service, the said fact is not
substantiated by prima facie evidence on record. Nothing is brought on record
to show that the defendant No.2 is not having its place of business at the
address of Bombay Stock Exchange. On the contrary, during the course of
arguments Ld Advocate for the plaintiff has shown that the plaintiff had made
correspondence with the defendant No.2 on the address of Bombay Stock
Exchange address. In rebuttal the defendant No.2 has not tendered anything on
record to substantiate their claim.
5) Though aforesaid claim of defendant is not substantiated, it will
not be proper to deny the opportunity to the defendant No.2 to put his
appearance on record. If opportunity is denied to the defendant No.2, the claim
of the plaintiff will be decided Exparte which will invite multiplicity of
proceedings. If the defendant No.2 is given opportunity, it will help to decide
the summary suit on merits which is in the interest of both the parties. The Ld
Advocate for the plaintiff also during the course of arguments conceded that
the appropriate orders be passed by putting the defendant No.2 to terms of
costs.
6) For aforesaid discussion, opportunity needs to be given to the
defendant No.2 to put his appearance on record by condoning delay of 114
days. The motion moved by the defendant No.2 deserves to be allowed. The
inconvenience caused to the plaintiff needs to be compensated by assigning
costs on the defendant No.2. In result, I proceed with following order.
ORDER
1) The Notice of Motion is allowed on cost
of Rs.1,800/ to be paid by the
defendant No.2 to the plaintiff on or
before next date.
2) Upon compliance of clause 1 of this
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NM No.243518 4 in Summary Suit No.76417
order, Exparte order passed against
the defendant No.2 dated 27/02/2016
shall stand set aside and the delay
caused in filing vakalatnama shall
stand condoned.
3) Accordingly, the Notice of Motion is
disposed of.
(C.P.Jain)
Adhoc Civil Judge
City Civil Court,
Gr. Bombay
Date : 27/11/2019
Dictated on : 27.11.2019
Transcribed on : 27.11.2019
Signed on : 27.11.2019
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NM No.243518 5 in Summary Suit No.76417
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.12.2019 3.06 p.m. Mrs. Shobha A. Shekade
Name of the Judge H.H.J. SMT. C.P. JAIN
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 27.11.2019
Order signed by P.O. on 27.11.2019
Order uploaded on 24.12.2019
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