Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3296/19 in Comm. Suit No. 814/21. 1 Order.
MHCC010089752019
Presented on : 29-08-2019
Registered on : 29-08-2019
Decided on : 22-12-2021
Duration : 2 years, 3 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3296 OF 2019
IN
COMMERCIAL SUIT NO. 814 OF 2021
(OLD SUMMARY SUIT NO. 1346 OF 2018)
Ambalal Prakashchandra Jain ...Plaintiff
Versus
Upendra Hastimal Porwal ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 22nd DECEMBER, 2021.
Ms. Dhruvika Bhayani, Advocate for the defendant.
Mrs. Savita Pattni, Advocate for the plaintiff.
ORDER
1. The defendant has filed present notice of motion for
condonation of delay of 21 days in filing affidavit in reply to the
Summons for Judgment No. 24/2019 by the defendant. Perused notice
of motion and affidavit in reply. Heard learned counsel Ms. Dhruvika
Bhayani for the defendant and learned counsel Mrs. Savita Pattni for
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N/m No. 3296/19 in Comm. Suit No. 814/21. 2 Order.
the plaintiff.
2. On perusal of record, it appears that Summons for
Judgment No. 24/2019 is filed on 15/01/2019. Record shows that
advocate for the defendant received copy of Summons for Judgment
(for short 'S.J.') on 21/01/2019. Then, the matter was fixed on
23/01/2019 when next date for S.J. reply was given as 22/02/2019.
Affidavit in reply to S.J. is placed on record on 22/02/2019 without any
objection on the part of the plaintiff and matter was adjourned for filing
rejoinder to 01/04/2019. Subsequently, matter was fixed for S.J.
hearing. Then, the defendant filed present notice of motion on
22/08/2019 for condonation of delay so that his affidavit in reply can
be taken into consideration while deciding S.J.
3. In the backdrop of above developments, learned counsel
Dhruvika Bhayani for the defendant submitted that affidavit in reply is
notarized on 28/01/2019 i.e. within ten days from the date of receiving
copy of S.J. and it is submitted to the court on the fixed date of hearing
i.e. 22/02/2019.
4. Learned counsel Savita Pattni for the plaintiff has
submitted that delay is not properly explained and notice of motion
may be dismissed. She further submitted that if the court comes to the
conclusion of allowing the notice of motion, costs may be imposed upon
the defendant.
5. Record shows that the defendant was diligent in preparing
his affidavit in reply within stipulated period and delay is caused in
filing the same on record due to longer date given in the matter. The
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N/m No. 3296/19 in Comm. Suit No. 814/21. 3 Order.
defendant does not appear to have taken time without any reason for
filing the reply to S.J. The defendant could have filed the application
for taking the matter on board in order to file reply to S.J. before the
expiry of ten days period from the date of receipt of S.J. Considering
grievance of the plaintiff and attending circumstances, reasonable costs
may be imposed upon the defendant. For all these reasons, notice of
motion is liable to be allowed. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 3296/2019 is made absolute in terms
of prayer clause (a) and (b) subject to cost of Rs.3,000/
payable to the plaintiff or his learned counsel on the next
date of hearing.
2. On payment of cost as above, reply given to Summons for
Judgment No. 24/2019 shall be taken into consideration
while deciding the same on merit.
3. The proceeding of N/m No. 3296/2019 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 22/12/2021. Mumbai.
1. Dictated online on : 22/12/2021.
2. Checked on : 23/12/2021.
3. Signed on : 23/12/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 3296/19 in Comm. Suit No. 814/21. 4 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2021. 5.29 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 22/12/2021.
Judgment/Order signed by P.O. on 23/12/2021.
Judgment/Order uploaded on 23/12/2021.
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