Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.30742019 ORDER 1
MHCC010084022019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3074 OF 2019
IN
SUMMARY SUIT NO.1345 OF 2018
Neeta Ambalal Jain
V/s.
… Plaintiff
Upendra Hastimal Porwal … Defendant
Appearances:
Adv. Savita Patne for plaintiff.
Ld.Adv. Ms. Bhayani for Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 18th December 2021
ORDER
1. This Notice of Motion is filed by defendant with request to set
aside the order dated 01/04/2019 and to condone technical delay of 21
days in filing the reply to the Summons for Judgment No.25/2019. The
defendant has also prayed other reliefs, that is, to allow unconditional
leave to defend the suit. But, that relief can be considered at the time of
Summons for Judgment.
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NM No.30742019 ORDER 2
2. It is the submission of the defendant that suit summons was
served on him. Thereafter, within limitation on 20/12/2018, the
defendant has filed vakalatnama on record. Thereafter, the plaintiff has
tendered draft summons for judgment and on 22/02/2019, the
defendant has filed reply on record. The same fact is reflects in
roznama. But on 01/04/2019, it is the observation of the then Presiding
Officer that the reply filed by the defendant is not filed within the
limitation on record. Therefore, the then Presiding Officer ordered to
proceed the Summons for Judgment without reply.
3. As per the case of the defendant that actually he has sweared oath
before the Notary within limitation. His reply is dated 28/01/2021, but
he has tendered the same after few days and therefore, technically, there
is 21 days delay, which is not deliberate one. The then Presiding Officer
has mentioned this fact in roznama. But, considered Summons for
Judgment without reply of the defenant. The defendant has good case
on merit. In such circumstances, the defendant requested by taking his
reply on record, the defendant would have been granted an opportunity
to contest the Summons for Judgment. With this fact, he requested to
allow him to file reply to the Summons for Judgment and to condone
the delay.
4. The plaintiff strongly opposed the notice of motion. It is the
submission of the plaintiff that notice of motion is filed just to delay the
proceedings. There is 21 days delay which cannot be called as technical
delay. In reply, the plaintiff has relied upon the citation of the Hon'ble
Apex Court in M/s. Swarovski India Private Limited Vs. SPA Agencies
and Another (In CS(OS) No.1342/2004, decided on 03/07/2009. In
that citation, it is the observation of the Court that 'if there is an attempt
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NM No.30742019 ORDER 3
to misguide the Court by creating the facts, then the Court should not
condone the delay'. Here, prima facie, from the pleadings and reply on
record, it appears that the defendant has taken swear on 28/01/2021
before the Notary, though he has tendered the same after 10 days on
record, but prima facie, there is an attempt from defendant to put the
same on record within limitation. The reply is already on record. As per
the case of the defendant, he has good case to contest on merit.
Considering the nature of the suit and defence, which would have been
raised by the defendant, it is necessary in the interest of justice to grant
him an opportunity to file reply to Summons for Judgment. So, the
Court can decide the same on merit. On perusal of record, there is no
misguide from the side of defendant. So, with due respect, the citation
is not applicable. Accordingly, following order is passed:
ORDER
1. Notice of Motion No.3074 of 2019 is made absolute.
2. The reply of the defendant to Summons for Judgment
No.25/2019 is allowed, to be taken on record.
3 Notice of Motion No.3074 of 2019 stands disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 18/12/2021 City Civil Court, Gr. Bombay
Dictated on : 18/12/2021
Transcribed on : 18/12/2021
Corrected on : 20/12/2021
HHJ signed on : 21/12/2021
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NM No.30742019 ORDER 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
22/12/2021 12.27p.m. Mrs. S.U. MANJREKAR
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
18/12/2021
JUDGEMENT /ORDER signed by P.O. on 21/12/2021
JUDGEMENT /ORDER uploaded on 22/12/2021
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