Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3024-19 in S.C. Suit no. 161-18
1 Date : 16.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3024 OF 2019
IN
S.C. SUIT NO. 161OF 2018
(CNR NO.MHCC010082562019 )
Mr. Hindurao Baburao Chavan & Anr. .. Plaintiffs
Versus
Mr. Manaji Baburao Chavan & Ors. .. Defendants
Appearances :
None present for Plaintiff.
Defendant no.1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 16.11.2019
ORDER
1. The defendant no. 1 filed instant Notice of Motion praying
for setting aside exparte order dated 26.10.2018 passed against
defendant no. 1 and further to condone the delay of 104 days in
filing Written Statement and allowing him to file Written
Statement on record.
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NM 3024-19 in S.C. Suit no. 161-18
2 Date : 16.11.2019
2. It is contended by the defendant no. 1 that the plaintiff filed
present suit for declaration and injunction against the defendants.
The defendants submitted that he has not been served with the
suit summons. On 12.03.2019 he has received the phone call from
the office of employer Bombay Dyeing and Manufacture Co. Ltd.
informing about the listing of matter on 14.03.2019. Therefore,
accordingly, on 14.03.2018, he has appeared in the matter before
this Court through his advocate and his advocate filed
Vakalatnama on the same date.
3. It is contended by the defendant no. 1 that after taking
inspection of case papers it revealed to him that on 27.03.2018,
the plaintiff filed Affidavit of service stated that special bailiff tried
to serve summons upon the wife of defendant no. 1 on
23.03.2018, but she refused to accept the service after reading out
contents to him on phone. It is contended by the defendant no. 1
that when he further inquired with his wife regarding the aforesaid
notice, she informed that some person had visited and they were
not disclosing their identity and were only seeking signature on
the papers without disclosing and explaining the contents and
purpose of signature on the paper. Therefore, his wife was afraid
and she was uneducated, hence, she refused to accept the
summons and to signed. Therefore, it is contended by the
defendant no. 1 that statement made in Affidavit of service is
totally false and incorrect.
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3 Date : 16.11.2019
4. It is contended by the defendant no. 1 that at that time he
was at his native place. The plaintiffs were aware of the aforesaid
fact and they wanted to take advantage of the same. Therefore,
the plaintiff deliberately went to serve the proceedings on his wife.
It is contended by the defendant no. 1 that after returning to
Mumbai, he inquired with the neighborer but nothing was
revealed about the person who have visited to his premises.
5. It is contended by the defendant no. 1 that he got the
knowledge of the present proceeding only when he had received
the phone call from his employer and thereafter he has filed
Vakalatnama. On that day his advocate obtained case papers and
after collecting the necessary papers, he gave instruction to his
advocate to file the Written Statement. Therefore, in such an
exercise, delay of 104 days has been caused to file Written
Statement.
6. It is contended by the defendant no. 1 that no prejudice or
loss will be caused to the plaintiff as the plaintiff has fair chance to
contest the matter, and if the delay is not condoned and if the
Written Statement is not filed, great harm would be prejudice to
the defendant no. 1 which can not be compensated in terms of
money. It is contended by the defendant no. 1 that he has good
case on merit and balance of convenience lies in his favour.
Therefore, he prayed for allowing the present Notice of Motion.
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NM 3024-19 in S.C. Suit no. 161-18
4 Date : 16.11.2019
7. The Notice of Motion is orally opposed by the advocate of
plaintiff. It is argued by her that summons were duly served,
however, the wife of defendant no. 1 purposefully refused to
accept the service. Hence, the allegation of defendant are totally
false. It is further contended by the plaintiff that refusal is good
service. The defendant failed to give sufficient reasons to condone
the delay. It is further contended by the plaintiff that delay can be
condoned subject to payment of heavy cost.
8. Heard both the sides. Perused Notice of Motion, Roznama as
well as Service Affidavit. It is not in dispute that the defendant no.
1 was duly served. His wife refused to accept the service. The
refusal is the good service. However, on the fair statement made
by the plaintiff’s advocate that the delay can be condoned by
awarding cost, therefore, I am inclined to allow the Notice of
Motion by awarding cost of Rs. 5,000/ to be payable by the
defendant no. 1 to plaintiff. Thus, I proceed to pass the following
order :
ORDER
1. Notice of Motion No. 3024 of 2019 is hereby made absolute
in terms of prayer clause (a), (b) and (c) subject to condition
of payment of cost of Rs. 5,000/ by the defendant no. 1 to
the plaintiff and after payment of the aforesaid amount, the
defendant no. 1 is allowed to file Written Statement on
record.
2. The defendant no. 1 to bear cost of Notice of Motion.
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NM 3024-19 in S.C. Suit no. 161-18
5 Date : 16.11.2019
3. Notice of Motion No. 3024 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil Court & Sessions Court
Dated : 16.11.2019 Greater Bombay.
Dictated on : 16.11.2019
Typed on : 16.11.2019
Draft Submitted on : 16.11.2019
Checked on : 18.11.2019
Signed on : 18.11.2019
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NM 3024-19 in S.C. Suit no. 161-18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19/11/2019 at 12.00 noon (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
16/11/2019
JUDGMENT/ORDER signed by P.O.
on
18/11/2019
JUDGMENT/ORDER uploaded on 19/11/2019
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