Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3451/2019 IN SUM.SUIT 933/17 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOITON NO.3451 OF 2019
IN
SUMMARY SUIT NO.933 OF 2017
(CNR NO.: MHCC010015832019)
Rajkumar Mohansingh Bajaj ...Plaintiff
Versus
Livewel Aviation Services Pvt.Ltd.&Ors. ...Defendants
Appearances:
Advocate Ms.Lalwani for the Plaintiff.
Advocate Mr.Shah for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATED : 16TH OCTOBER 2019
ORAL ORDER
1. This notice of motion is for recalling the order of exparte
arguments dated 18/03/2019 and to condone the delay of 590 days in
filing reply to summons for judgment.
2. This is suit for recovery of Rs. 31 Lakhs along with future interest
@ 18% p.a. It is the case of the plaintiff that defendant No.1 drew two
demand bills of exchange on defendant No.2 and 3 for valuable
consideration of Rs.45 Lakhs and Rs.5 Lakhs respectively. It is further
case of the plaintiff that the part payment of bill of exchange was made
but the total amount is not paid and therefore, plaintiff has filed this
suit.
3. The defendants appeared through their advocate. Thereafter the
plaintiff had filed summons for judgment which was served upon
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defendants. But they did not filed their appearance within time,
therefore, this notice of motion.
4. Heard ld.counself for defendant and Ld.counsel for plaintiff.
5. From the material on record following points arise for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to set aside order of exparte
arguments dated 18/03/2019 and
to condone delay of 590 days?
Yes
2. What order? As per final order
REASONS
AS TO POINT NOS.1 &2
6. Ld.counsel for defendant has submitted that summons for
judgment was not served upon defendants. The defendants were
shocked and surprised to know that matter was kept for exparte
arguments. The defendants are not sure whether summons for
judgment was served upon them as there has been several changes in
the office and staff is also changed. The defendants had faced certain
labour problems, therefore by way of caution, defendants are seeking
condonation of delay.
7. The plaintiff has resisted this motion by filing reply. The
Ld.counsel for plaintiff has strongly objected to this motion and has
submitted that this notice of motion is abuse of the process of law. The
defendants have not complied with the earlier order passed in notice of
motion No.4080/2017. The person who has signed the affidavit of
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notice of motion has not produced any authority such as copy of board
resolution or power of attorney in this notice of motion. Earlier some
other authorized person has signed the vakalatnama and now another
authorized person is signing the affidavit of notice of motion. When this
notice of motion was filed the summons for judgment was not at all on
record, therefore, the motion of defendants is prematured and
misleading and needs to be dismissed.
8. From the record it can be seen that the notice of motion
No.4080/2017 was taken out by defendants as there was delay to file
vakalatnama. After hearing both the sides this court allowed that notice
of motion of 01/03/2019 and cost of Rs. 3,000/ was imposed upon
defendants. It is the contention of the advocate for plaintiff that
defendants had not complied with that order but the roznama dated
21/06/2019 shows that the cost of Rs.3000 was received by plaintiff,
therefore it cannot be said that earlier order passed in Notice of motion
4080/2017 was not complied by defendants.
9. The record further shows that on 24/06/2019 plaintiff's advocate
has tendered draft summons for judgment . This notice of motion is
filed on 30/04/2019 and one of its prayer is that to condone delay of
590 days to file reply to summons for judgment, therefore, as far as
prayer to condone the delay to file reply of summons for judgment is
concerned to that extent this notice of motion is prematured. Further
the Ld.counsel for plaintiff has taken objection about the change of
authorised person by defendants , such objection at this stage, is too
technical as if there is any such irregularity the effect of such
irregularity will definitely taken into account of final hearing of suit.It
seems that defendants wants to contest this suit. The reply to summons
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for judgment is filed by advocate for defendant on 05/10/2019. The
affidavit of service of summons for judgment shows that the advocate of
defendants accepted the coy of summons for judgment on 25/06/2019.
The defendants were supposed to file the reply to summons for
judgment within 10 days which means within 05/07/2019 but they
have filed reply on 05/10/2019 which means there is delay of 3 months
to file leave to defend. Though this notice of motion is filed prior to
filing of summons for judgment but to prevent the delay in this case.
The reasons stated in this notice of motion is taken into consideration.
The reason stated by defendants about their problems with staff is
supported by affidavit. To give a fair chance to defendants, the order of
exparte arguments and delay to file leave to defend can be condoned
subject to cost of Rs.5,000/, therefore, point No.1 is answered as 'Yes'
and following order is passed.
ORDER
1. Notice of Motion No.3451/2019 is allowed.
2. The delay of 3 months to file leave to defend is condoned subject
to cost of Rs. 3,000/ to be given to the plaintiff.
3. The order of exparte arguments dated 18/03/2019 is set aside
subject to cost of Rs.2,000/.
4. Notice of Motion No.3451/2019 stands disposed of.
(M.S.LONE)
Judge,
Date: 16/10/2019 City Civil Court,Gr. Bombay.
Dictated on : 16/10/2019
Transcribed on : 17/10/2019
Signed on : 19/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19/10/2019 5.00p.m. Mrs.J.V.Pawar
Name of the Judge HHJ Shri M.S.Lone(CR No.28)
Date of Pronouncement of
Judgment/Order.
16/10/2019
Judgment/order signed by P.O on 17/10/2019
Judgment/order uploaded on 19/10/2019
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