Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010084352019 Presented on 13/08/2019
Registered on 13/08/2019
Decided on 16/10/2025
Duration 06Y: 02M: 03D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 3089 OF 2019
IN
SUMMARY SUIT NO. 1536 OF 2014
M/s Chemical Corp Pvt. Ltd. ]
Having its registered office at ]
Raut Chambers, 4th Floor, 340/42, ]
Samuel Street Through its ]
Representative Mr. Harshad J. Shah. ]...Plaintiffs
V/s.
1. M/s POSO Silicate Pvt. Ltd. ]
Plot No.H-4, MIDC. Butibori, ]
Near Reliance Power Project, ]
Nagpur – 442211. ]
Also at ]
M/s. POSCO Silicate Pvt. Ltd. ]
97, Vivekanad Nagar, Ajni, ]
Nagpur-442211. ]
2. Mr. Sanjeev Vasantrao Chimote ]
Director M/s POSO Silicate Pvt. Ltd, ]
Plot No. H-4, MIDC, Butibori ]
Near Reliance Power Project, ]
Nagpur – 442211. ]
3. Mr. Ashish Amulya Sinha ]
Director M/s POSO Silicate Pvt. Ltd, ]
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SUM SU No.1536/2014
Plot No. H-4, MIDC, Butibori ]
Near Reliance Power Project, ]
Nagpur – 442211. ]...Defendants
Appearance:
Plaintiff absent.
Ld. Adv. Prasad Narkar i/b. Adv. Swaroop Karhad for defendants.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 19/10/2025
O R D E R
01. This notice of motion is filed by defendant No.3 to condone
delay of 139 days to set a side ex-parte judgment and decree dated
16/04/2016 passed in Summary Suit No. 1536 of 2014.
02. This notice of motion is taken out by defendant No. 3 on
23/07/2019. Ld. counsel for plaintiff has failed to file reply to the
notice of motion. Therefore, order was passed on 07/12/2021 to
proceed notice of motion without reply of the plaintiff.
03. It is submitted on behalf of the defendant No.3 that
plaintiff has filed Summary suit No.1536/2014 for recovery of sum of
Rs.37,32,671/- from defendants. It is further submitted that writ of
summons issued to the defendants is returned with remark “Company
Closed” and it is evident from roznama dated 17/11/2015. Further,
plaintiff vide application at Exh.4 served writ of summons to the
defendants by way of paper publication. The suit was ordered to be
procedure ex-parte against defendants vide order dated 16/04/2016 as
per Order 37, Rule 2(3) of C.P.C. The matter proceeded is absence of
defendants and they have not got an opportunity to contest the matter.
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The defendants have merit in the matter and it is evident from reply
given to the notice issued by the plaintiff wherein defendants have
denied alleged claim of the plaintiff. Defendants have returned entire
amount to the plaintiff and no dues are pending. The ex-parte judgment
and decree came to the passed on 16/04/2016 in absence of
defendants. They were not aware about the suit filed by plaintiff. They
came to know on 07/02/2019 when one of the worker informed that
Court notice is stuck at the factory premises. Therefore, after consulting
with their advocate, they applied for certified copies on 02/03/2019
and same were received on 28/03/2019. Defendant No. 3 has taken on
this notice of motion on 23/07/2019. Thus, there is delay of 139 days
to take out this notice of motion from the date of knowledge of
execution. The delay is not intentional one. Hence, considering the facts
that defendants have good case on merit. It is necessary to condone
delay and set aside ex-parte decree and judgment dated 16/04/2016. If
notice of motion is allowed no prejudice would cause to the plaintiff.
Hence, notice of motion be allowed.
04. Perused notice of motion and record. Heard Ld. Counsel for
defendant No. 3. The notice of motion is taken out defendant No. 3 on
23/07/2019 to set a side ex-parte judgment and decree dated
16/04/2016. It is the contention of defendant No. 3 that there is delay
of 139 days to set a side ex-parte judgment and decree. As per
defendant No. 3, he got Knowledge on 07/02/2019 when he received
notice of execution. Further, he obtained certified copies on
28/03/2019 and filed notice of motion on 23/07/2019. It is pertinent
to note that there is delay of 1160 days to set a side ex-parte judgment
and decree dated 16/04/2016. Even, it is considered that defendant
No. 3 got knowledge on 07/02/2019, there is delay of 136 days to file
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this notice of motion.
05. Defendant No. 3 has taken defence that he was not aware
that plaintiff had filed summary suit against defendants. Further, it is
the contention of defendant No. 3 that Writ of Summons was returned
with remark 'company closed'. Plaintiff without taking steps to serve
writ of summons by pasting, directly served by way of paper
publication. It is pertinent to note that if summons is not served in
ordinary way, plaintiff has to take steps to serve writ of summons by
way of substituted service either by affixing writ of summons on a
conspicuous part of the company last known place of business or by
way of publishing it in daily news paper that circulate in locality where
defendant was last known carry on business. Admittedly, plaintiff has
not applied for service by pasting however, it is served through paper
publication. Further, considering facts of the present case, report of
summons discloses that company was closed therefore, even if writ of
summons was served by pasting no purpose would have served.
Therefore, I am of view that there is no default on the part of the
plaintiff to serve writ of summons by paper publication.
06. The matter was proceeded ex-parte as defendants failed to
appear in the matter. Further, considering huge delay to set aside
ex-parte decree, I am of the view that reasons given by defendant No. 3
are not sufficient, cogent and satisfactory to condone the delay.
Defendant No. 3 has not brought his defence on record. Defendant No.3
has merely contended that he has good case on merit. Defendant No.3
has not made out case to condone delay and to set aside ex-parte
judgment and decree. Therefore, I am of the view that defendant No. 3
is not entitled for relief as claimed. Hence, I proceed to pass the
following order.
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ORDER
1. Notice of motion No. 3089/2019 is hereby dismissed.
2. No order as to cost.
3. Notice of motion No.3089/2019 is disposed of accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 16/10/2025
Dictated on : 16/10/2025
Corrected & signed on : 17/10/2025
.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF CLERK -CUM -TYPIST
17/10/2025 Mr. Mayur Sankpal
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
16/10/2025
JUDGMENT/ORDER signed by P. O. on 17/10/2025
JUDGMENT/ORDER uploaded by Mrs. V. V.
Malgaonkar on
17/10/2025
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