Interim Order 1

Order Details: Chamber summons
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT CHAMBER SUMMONS
IN
S.C. SUIT NO.1044 OF 2019
Sahastra Exports Pvt. Ltd. ]… Plaintiff Bank
V/s.
1. Oasis Enterprise & Anr. ]...Defendants.
Appearance:
Learned Advocate Mr. Ibrahim Merchant for plaintiff.
Learned Advocate Mr. Sanjay Dhadam for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 22nd January, 2021
ORAL ORDER
1. Mr. Somil Shah took out this Chamber Summons being Sole
proprietor of defendant No.1 Oasis Enterprises for condonation of delay
in filing Vakalatnama and taking Vakalatnama on record.
2. Perused draft Chamber Summons, affidavit in support of
Chamber Summons and say of plaintiff's advocate given in hand
writting overleaf the Chamber Summons today.
3. Heard Learned Advocate Mr. Ibrahim Merchant for plaintiff
and Learned Advocate Mr. Sanjay Dhadam for defendants.
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4. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether delay in filing Vakalatnama of
defendant No.2 as Sole Proprietor of
defendant No.1 can be condoned?
In the affirmative.
2. Whether Vakalatnama of defendant
No.2 as Sole Proprietor of defendant
No.1 can be taken on record ?
In the affirmative.
3 What Order ? Chamber Summons
is allowed as per
final order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the defendant that, writ of
summons are served on 16.11.2019. The suit is filed under Order 37 of
Code of Civil Procedure. Vakalatnama is not filed within 10 days from
the date of service of writ of summons. Defendant No.2 is Sole
Proprietor of defendant No.1. He is staying with his family at Sion. He
was unable to attend the Court by filing Vakalatnama. He was heavily
burdened with his business. He was also not well and Dr. Adviced him
to take two weeks rest. Due to health issues he could not contact his
Advocate. He contacted his advocate on 06.03.2020. There is delay of
100 days in filing Vakalatnama. Therefore delay be condoned.
6. In brief, it is contention of the plaintiff that writ of
summons are served on 18.11.2019. It was informed to the defendant
via writ of summons to make his appearance before the Court within 10
days from the date of service of writ of summons. There are no
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Draft Ch/s .. 3 .. Suit No.1044/2019
sufficient reasons to condone the delay. Chamber Summons be
dismissed with costs.
7. Writ of summons are served upon defendant on
18.11.2019. This Chamber Summons is filed on 06.03.2020.
8. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant as per Rule 2 of
Order 37 and the defendant may at any time within ten days from such
service enter an appearance either in person or by pleader and he shall
file in Court an address for services of Notice on him.
9. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
10. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
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Draft Ch/s .. 4 .. Suit No.1044/2019
11. There is delay in entering appearance of the defendant, in
view of Orer 37 Rule 3 Sub Rule 1 of the Code of Civil Procedure.
Considering the grounds of delay mentioned in the draft Chamber
Summons that defendant No.2 is Sole Proprietor of defendant No.1, he
is staying with his family at Sion, he is only one person running his
business, he was heavily burdened with his business, he was not well
and Dr. Advised him to take two weeks rest. Therefore, I am of the
opinion that delay can be condoned and defendant can be permitted to
enter his appearance. Hence, I record my findings to point Nos.1 and 2
in the affirmative and point No.3 as per final order. Hence, following
order:
ORDER
Draft Chamber Summons in Summary Suit no. 1044 of 2019 is allowed
as under-
1. Delay in entering appearance of defendant before the Court is
hereby condoned.
2. Defendant is permitted to file Vakalatnama till next date.
3. The Draft Chamber Summons be registered for statical purpose.
4. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 22/01/2021 City Civil Court, Gr. MUMBAI
Dictated on : 22.01.2021
Transcribed on : 28.01.2021
Checked on : 28.01.2021
Signed on : 28.01.2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.01.21 at 03.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 22.01.2021
Judgment/order signed by P.O. on 28.01.2021
Judgment/order uploaded on 28.01.2021
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