Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.3207 OF 2019
(CNR No.MHCC01-008714-2019)
IN
SUMMARY SUIT NO.1230 OF 2014
1. Raghvedra Shikshan Prasarak Mandal
A trust registered under Bombay Public Trust
Act. For Education Purpose, through its trustee
And president having address at Bodhare,
Tal Chalisgaon, Dist, Jalgaon, Through
Their Trustees and President
2. Mr. Nikhil Julalsing Rathod
An Adult Inhabitant of Jalgaon,
A Trustee of Raghvedra Shikshan Prasark
Mandal, Aged 42 years, Occ: Service
Residing at Sane Guruji Nagar, Hirpur Road,
Chalisgaon, Dist. Jalgaon.
3. Smt.Vanmala Julalsing Rathod
An Adult Inhabitant of Jalgaon,
A Trustee of Raghvedra Shikshan Prasark
Mandal, Aged 75 years, Occ: Service
Residing at Sane Guruji Nagar, Hirpur Road,
Chalisgaon, Dist. Jalgaon.
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4. The Principal,
Raghvedra Shikshan Prasark Mandal’s,
Late Junsing Mangtu College of Engineering
(Diploma)
Abhishek Gopalrao Deshmukh
Aged 38 years, Occ: Service
Residing at Bodhare, Chalisgaon, Dist. Jalgaon.
IN THE MATTER BETWEEN
1. Mr. Prakashchand R Jain,
An adult,
Aged 56 years, Inhabitant of Mumbai,
Carrying on business in the name and Style of
M/s. Jain Services, Having address at 2080,
Bhandup Industrial Estate, L.B.S. Marg,
Bhandup (W), Mumbai-400 078.
... Plaintiffs
Verses
1. Raghvedra Shikshan Prasarak Mandal
A trust registered under Registration Act
For Education Purpose, through its trustee
And president having address at Valthan,
Tal Chalisgaon, Dist, Jalgaon, Through
Their Trustees and President
…Defendants
2. Mr. Nikhil Rathod
Ad Adult Inhabitant of Jalgaon
A Trustee of Raghvedra Shikshan Prasark
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Mandal, Aged 42 years, Occ: Service
Residing at Sane Guruji Nagar, Hirpur Road,
Chalisgaon, Dist. Jalgaon.
3. Smt. Vanmala J. Rathod
An Adult Inhabitant of Jalgaon
A Trustee of Raghvedra Shikshan Prasark
Manda, Aged 42 years, Occ: Service
Residing at Sane Guruji Nagar, Hirpur Road,
Chalisgaon, Dist. Jalgaon.
4. The Principal,
Raghvedra Shikshan Prasark Mandal’s,
Late Junsing Mangtu College of Engineering
(Diploma)
Abhishek Gopalrao Deshmukh
Aged 38 years, Occ: Service
Residing at Bodhare, Chalisgaon, Dist. Jalgaon.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 18/12/2021
Adv.Mr. Dhananjay Pathak for the plaintiffs.
Adv. Mr. Styajit Dighe, for the defendant.
ORAL ORDER
1. This is a notice of motion taken out by the defendants for
condonation of delay if any and setting aside ex-parte decree passed on
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dtd. 23.10.2017.
2. The notice of motion is replied by the plaintiff.
3. Heard respective advocates at length and perused the
record.
4. In the notice of motion it is submitted by the defendants
who are the applicants of this notice of motion that applicant no.1 is a
Trust registered under the Bombay Public Trust Act, 1950, applicant
no.2 is the Trustee and Committee Member, applicant no.3 is the
Chairman and Applicant no.4 is the newly appointed principal of the
college of applicant no.1 Julalsingh Matunga College of Engineering i.e
Diploma. They came to know about the order and decree passed in
Summary Suit No.1230/2014 only after receiving the notice for
execution of said ex-parte decree on dtd.3.4.2018. It is further
submitted that writ of summons of Summary Suit No.1230/2014 was
not served upon them and they were not aware about the filing of the
suit. No information has been received by the Board Department nor
acknowledgment is received nor post parcel is received by the Board
Department. The applicant no.1 is a prestigious Trust in Chalisgaon
District and they are running various Aashram Shala and Colleges in
said region. In the year 2009-2010, one Ravindra G. Magar was
working as Principal of Applicant no.4 i.e original defendant no.4. He
was solely handling the administration of said college and was incharge
of all the documents and records. Due to health issues it was not
possible for applicant no.3 to continuously attend the office. Applicant
nos. 1 and 2 are having various colleges at many places. They kept
signed blank cheques in the custody of applicant no.4 being the
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principal of the college for emergency purpose. Even in the year 2010-
2011, blanked signed cheques were kept in his custody in the like
manner by taking prior approval in writing before issuing the same.
Applicant no.4 never informed about the need of goods and items
needed for the lab for teaching purpose. He took undue advantage of
ill-health of applicant no.3 and prepared false purchase order with the
help of plaintiff. The fraud has been committed by Ravindra Magar and
he was suspended from the college. He acted hand in gloves with the
plaintiff and fabricated invoices which were annexed with the plaint
only with the intent to extract money from the applicants.
5. The proceeding has been initiated by the plaintiff on the
basis of false and fabricated documents. The writ of summons was not
served on the applicants. Therefore, they could not remain present
before the court. Necessary steps could not be taken by them and
therefore, ex-parte decree in pursuance of ex-parte judgment dtd.
23.10.2017 came to be passed against the applicant i.e defendants. The
applicants have filed this notice of motion immediately after receipt of
notice of ex-parte execution proceeding. Hence, there has been no
intentional delay on the part of applicants. They want to contest the
suit as it is based on false and fabricated documents. Hence, the ex-
parte decree dtd. 23.10.2017 may be set aside and until notice of
motion is decided, the Execution Proceeding in RD No.17/2018 at
Chalisgaon may be stayed.
6. In response to said submission, the plaintiff replied that the
writ of summons was duly served on the applicants and the same is
visible from the record. He has given the details as to how the
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transaction regarding supply of goods and equipments worth
Rs.25,02,179/- took place in-between the plaintiff and defendants. It is
submitted that the defendants paid Rs.10,00,000/- through cheque but
failed to make payment of balance amount. The suit has been filed as
the cheque issued by defendants got dishonored and the balance
amount has not been paid by the defendants.
7. It is stated that the writ of summons was served on all the
defendants on dtd. 26.9.2014 through RPAD. They did not appear and
the claim of plaintiff remained un-rebutted. There is no reasonable
ground for setting aside ex-parte decree. The application is time barred
and notice of motion is not maintainable. Hence, it may be rejected with
costs.
8. I have perused the record. It is pertinent to note that it is
undisputed fact that ex-parte decree came to be passed against all the
defendants on dtd. 23.10.2017. At present juncture the execution
proceeding in RD No.17/2018 is pending before the court of Civil Judge
Sr. Division Chailsgaon. The execution is commenced and if the ex-parte
decree is not set aside, the decree will be executed. Now it is necessary
to examine whether grounds putforth by defendants are sufficient to set
aside ex-parte decree or not. This notice of motion is brought around
after 2 years of the passing of ex-parte decree. Motion has been brought
basically on the ground that they were not duly served with suit
summons and secondly, the ex-parte decree has been obtained by
playing fraud and in collusion with the plaintiff and the then defendant
no.4, Principal. The suit is based on forged and fabricated documents
created by plaintiff and the then principal of defendant no.4.
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9. Order XXXVII Rule 13 States that while setting aside ex-
parte decree, the defendants may apply to the court by which the
decree was passed for an order to set aside and if the court is satisfied
that the summons were not duly served, or that he was prevented by
any sufficient means from appearing when the suit was called on for
hearing, the court may make such order setting aside the decree against
him as it thinks fit, and shall appoint a day for proceeding with the
suit.
10. If, either of these case contentions is satisfied, the court
must set aside the ex-parte decree. The satisfaction can be recorded by
recording evidence or on the basis of affidavits. According to plaintiff,
evidence is not recorded by the defendant. Everything on air and
nothing substantial is brought on record by the defendants. However,
record shows that the defendants have produced the affidavit of service
on record and according to said report the department do not receive
any information regarding defendant nos.1 and 3 by Board Department
till now. Neither acknowledgment is received nor post parcel is received
by Board Department. So far as, service on defendant no.2 is concerned,
it is reported that defendant no.2 is not ready to accept the summons.
To my mind, same is proper service on defendant no.2. However,
service on defendant nos. 1 and 3 is in dispute. In such circumstances,
there is substance in the submission of defendants that they were not
duly served.
11. Secondly, the defendants have sufficiently putforth the
grounds regarding fraud allegedly played by plaintiff and the then
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defendant no.4. Said issue needs to be examined on the touch stone of
evidence.
12. The defendants have submitted that the then defendant
no.4 played fraud on them and therefore, the entire transaction falsely
took place. The allegations regarding forgery has been made against the
then defendant no.4 and plaintiff. It shows the certain triable issues and
meritorious grounds are made out by the defendants to re-open the
summary suit by setting aside ex-parte decree passed against them.
13. To my mind, if the ex-parte decree is set aside, the same is
not going to cause any irreparable loss or harm to the plaintiff. If the
defendants are allowed to appear and contest the suit, the controversy
will be decided on merit and both parties will get equal opportunity to
putforth their claim and defence before the court. It transpires from the
record, that the defendants have putforth justified and satisfactory
ground for not appearing in the summary suit proceeding. In such
circumstances it will in the interest of justice to set aside the ex-parte
decree passed on dtd.23.10.2017. So far as the prayer regarding grant
of interim stay to execution proceeding is concerned, it is visible that
now final arguments are over in this matter and order is being passed
now. So the prayer for grant of stay to execution proceeding became
infructuous.
14. Hence, in view of the discussion made above, I proceed to
pass following order:
ORDER
1. The Notice of Motion no.3207/2019 is allowed and made
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absolute in terms of prayer clause (a) of said notice of motion.
2. The ex-parte decree passed in Summary Suit No. 1230/2014
dtd.23.10.2017 is set aside subject to payment of costs of
Rs.20,000/- to the plaintiff and the original summary suit be
restored accordingly.
Date: 18.12.2021
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 18.12.2021
Typed on : 18.12.2021
Signed on : 29.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.12.2021 03.10 p.m. ( K.M.RANA)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
18.12.2021
JUDGMENT/ORDER signed by
P.O.on
29.12.2021
JUDGMENT/ORDER uploaded on 29.12.2021
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