Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S.1655-19 in Comm. Suit no. 132-21
MHCC010093712019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO.1655 OF 2019
IN
COMMERCIAL SUIT NO. 132 OF 2021
IN
(Old SUMM.SUIT NO. 1069 OF 2018.)
Jitendra Kheraj Chandan ]...Plaintiff
Versus
R.K. Satyam Dyes & Chemicals and Anr. ]..Defendants
CORAM : HIS HONOUR JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 25th August, 2021.
Appearance:
Ld. Advocate Hardik Desai for plaintiff.
Ld. Advocate Santosh Wagh i/b B.K. Barve & Co for deft. Nos.1 & 2.
ORDER
This chamber summons is taken out by the defendants to
condone the delay in filing leave to defend.
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2 Ch.S.1655-19 in Comm. Suit no. 132-21
2. It is the contention of the defendants that the defendants have
been served with suit summons on 03.11.2018. On 12.11.2018 the
defendants have filed the vakalatnama. The copy of Summons for
Judgment is not served on the defendants. The defendants were
required to file leave to defend within 10 days from the service of
Summons for Judgment. The plaintiff has sent copy of said Summons
for Judgment at the office of defendants advocate. As the said office
was locked and no intimation was delivered, the advocate for
defendants did not receive the copy of Summons for Judgment. There
is remark as 'unclaimed'. The defendants were not aware about the
service of Summons for Judgment on their advocate. The defendant
No.2 who is proprietor of defendant No.1 is residing at Ludhiyana. On
31.07.2019, the advocate for defendants was not present and therefore
he was unaware about the filing of service of affidavit. On 07.08.2019,
the defendants sent letter to the plaintiff for service of Summons for
Judgment. After appearance, the defendants have filed written
statement cum leave to defend which can be considered as leave to
defend. There is no intentional delay. With these contentions, the
defendants have prayed to condone the delay in filing the leave to
defend.
3. The plaintiff has filed reply to the Chamber Summons and
resisted it.
4. Heard the Ld. Advocate for the defendants and the plaintiff.
Points for determination alongwith my findings thereon with reasons
are as under:
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3 Ch.S.1655-19 in Comm. Suit no. 132-21
Sr.
No.
POINTS FINDINGS
1. Whether delay in filing leave to defend shall
be condoned?
Does Not Survive
2. What order As per final Order
Reasons
As to point Nos. 1 & 2:
5. It is the contention of the defendants that notice for Summons for
Judgment is not duly served on them and therefore, they could not file
leave to defend within time. Record shows that Summons for Judgment
is taken out by the plaintiff on 30th April 2019. Service Affidavit of
Summons for Judgment is not on record. There is only packet of
registered A.D. which addressed to Mr. Suryakant PiseAdvocate. It
bears endorsement as 'Unclaimed”. The Hon'ble Bombay High Court in
Udhav Baliram Adawale v/s. Babruwan Papanarsh Gaikwad,
(2017)6 BOMCR 55 2017 SCC OnLine BOM 6865 held that service of
summons notice which returned with endorsement of unclaimed is not
service. Hence, the endorsement of 'unclaimed' on registered packet
addressed to the advocate of defendant in respect of service of
Summons for Judgment cannot be considered as good service.
Therefore, there was no service of Summons for Judgment on the
defendant. However, record also shows that at the time of appearance
itself, the defendant has filed reply/ leave to defend/ written statement.
In the present chamber summons, the defendants have contended that
if their request for condonation of delay is rejected, said reply/leave to
defend/written statement shall be considered as their leave to defend.
As aforesaid on the point of service of Summons for Judgment, it is
already noted by me that the endorsement of 'unclaimed' is not good
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4 Ch.S.1655-19 in Comm. Suit no. 132-21
service. Order 37 Rule 3 Sub Rule 4 provides that if the defendant
enters an appearance, the plaintiff shall thereafter serve on the
defendant a Summons for Judgment in Form No. 4A in Appendix B or
such other Form as may be prescribed from time to time, returnable not
more than 10 days from the date of service supported by the affidavit
verifying the cause of action and the amount claimed and stating that in
his belief there is no defence to the suit. As per the record there is no
compliance of provision of Sub Rule 4 as there is no service of
Summons for Judgment. Hence, there is no question of delay or
condonation of delay. Taking note of these facts on record and while
disposing off this chamber summons, in answer to point no.1 and 2, I
pass the following order.
ORDER
1 As there is no service of summons for judgment on defendants, there
is no delay for filing leave to defend.
2. The plaintiff to comply with Sub Rule 4 of Rule 3 of Order 37 of the
Code of Civil Procedure, 1908.
3. The Chamber Summons No.1655 of 2019 is disposed off accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 25.08.2021 Mumbai.
Dictated on : 25.08.2021
Transcribed on : 25.08.2021
Signed by HHJ on : 28.08.2021
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5 Ch.S.1655-19 in Comm. Suit no. 132-21
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
30.08.2021 at 11.31 am
UPLOAD DATE AND TIME
Mrs. Pushpa R.Wagh
(H.G.Stenographer)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
25.08.2021
Judgment/order signed by P.O. on 28.08.2021
Judgment/order uploaded on 30.08.2021
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