Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2897/19 EXEU APPLN.24/18 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2897 OF 2019
IN
EXECUTION APPLICATION 24 OF 2018
(CNR NO.: MHCC010080032019))
Pravin Dinkar Javkar ...Plaintiff/DH
V/s.
Umesh Arvind Doshi & Ors. ...Defendant/JD
Appearances:
Advocate Mr.Redekar for Plaintiff.
Advocate Ms.Kadu for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 17TH DECEMBER 2019
ORDER
1. Read the notice of motion and reply to it.
2. Heard Ld. advocates on behalf of both the parties.
3. Considering the material on record and submissions made on
behalf of the parties points arise for determination alongwith my
findings thereon for the reasons recorded are as under:
POINTS FINDINGS
1.Whether the applicants/defendants
made out sufficient cause and ground
for setting aside the exparte decree?
In the Negative
2. What order? As per final order
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REASONS
AS TO POINTS NO.1 AND 2.
4. It reveals that the plaintiff had by summary suit No.783/2016
prayed for recovery of certain amount. The same suit came to be
decreed against defendants No.1 to 3. Defendant No.1 is the brother of
defendant No.2 whereas defendant No.3 is her husband.
5. By present notice of motion the applicants requested to set aside
the exparte decree passed in the summary suit No.783/2016. The
applicants contended that due to ill health of defendant No.2, neither
she nor her husband defendant No.3 could appear before the court.
They contended that the plaintiff has obtained the decree by playing
fraud and forgery on the defendants.
6. The Ld.advocate on behalf of the defendants argued that the
transaction as referred in the summary suit No.783/2016 and relied on
by plaintiff was misleading transaction. Signature of the defendants
were obtained on blank paper. He argued that the defendants No.2 and
3 had sufficient cause for non appearance before the court. Therefore,
he requested to set aside the exparte decree passed in summary suit
No.783/2016.
7. On the other hand, the plaintiff resisted the notice of motion. The
plaintiff denied that the decree has been obtained by playing fraud on
defendants No.2 and 3. The Ld.advocate on behalf of the plaintiff
argued that there has been delay in taking out notice of motion.
However, there has been no prayer for the delay condonation. There is
no document showing that defendant No.2 was unable to attend the
court due to illness. The defendants with full understanding and
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consciousness executed the memorandum of understanding. No
sufficient ground is made out to set aside the exparte decree.
Therefore, he requested to reject the notice of motion.
8. Admittedly, the judgment and decree in summary suit
No.783/2016 has been passed on 04/07/2017. The defendants ought to
have applied for setting aside the same judgment and decree within 30
days. However, present notice of motion has been filed on 22/02/2019.
Thus, there has been delay of one year and six months to file the notice
of motion for setting aside exparte decree. However, there is no prayer
at all for condonation of delay for the period of one year and six
months. Resultantly, on this ground, the notice of motion is liable to be
rejected.
9. Turning to the contention regarding sufficiency of the reason for
nonappearance, admittedly, summons has been served on the
defendants. As such, the defendants are under obligation to establish
that they had sufficient cause for non appearance before the court. The
defendants contended that in 2009, defendant No.2 Priti was detected
with an intramural fibroid and her movements outside the house came
to be restricted, she also became pregnant, that time, defendant No.2
being her husband was the only person taking her care during the
critical time. The copy of sonography report is filed on record. It was
issued on 01/08/2009. It supports the contention of defendant No.2
that she was detected with intramural fibroid. She was also pregnant at
that time. However, same diagnosis and pregnancy was of year 2009.
Present suit was instituted in the year 2016. The exparte decree came
to be passed on 04/07/2017. Thus, after about 7 to 8 years of her
pregnancy and detection of fibroid, the suit was instituted and
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summons was served on the defendants. Thus, the pregnancy of year
2009 and detection of fibroid in that period cannot be a ground for the
defendants for non appearance in the subject suit.
10. The defendants also relied on certificate dated 24/04/2018
issued by Gynecologist Dr. Shah of Pratik hospital, Sonography report
dated 08/02/2018, Histopathology report dated 14/04/2018. It reveals
that abdominal hysterectomy was conducted on the defendant No.2 and
she was advised rest for one month from 17/04/2018. It can be
gathered that she could have been unable to attend the court in the
month of April and May 2018. However, the summons was served on
the defendant on 31/08/2016, that is much prior to April 2018. There
is nothing on the record to show that, during the period when summons
was served and the dates when the defendants were required to appear,
defendant No.2 was suffering from any illness and resultantly was
advised rest and was unable to attend the court for said reason. No
medical certificate is produced on record regarding that. As such, no
material to show that defendant No.2 could not have appeared in the
suit despite service of summons. Therefore defendant's contention
regarding sufficiency of cause cannot be relied.
11. The defendants also contended that the MOU was got executed
by the plaintiff by playing fraud. It may be noted here that, much prior
to the institution of the present suit, the plaintiff had issued notice
dated 20/08/2015 to defendant No.2 calling upon her to comply with
commitment made in the MOU. The defendants No.2 and 3 replied the
said notice contending that they executed MOU only to confirm that
whatever loan is taken by defendant No.1 will be paid by him. This
court must note that even prior to institution of the present suit the
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MOU was clearly brought to the notice of the defendants by plaintiff by
issuing notice dated 20/08/2015. Still the defendants did not take any
steps to challenge the said document by filing appropriate proceedings.
It is not the contention that the defendants are illiterate persons and
therefore, could not have gone through the MOU. Thus, prima facie
there is no substance in the contention of the defendants. In any case
the defendants failed to make out sufficient cause for non appearance
before the court and to pray for condonation of delay. Hence, point
No.1 is answered in the negative and in answer to point No.2 order as
follows is passed.
ORDER
The notice of motion No.2897/2019 is rejected.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 17/12/2019 City Civil Court, Gr. Mumbai
Dictated on : 17/12/2019
Transcribed on : 10/01/2020
Signed on : 16/01/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
16/01/2020 at 5.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 17/12/2019
Judgment/Order signed by P.O. on 10/01/2020
Judgment/Order uploaded on 16/01/2020
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