Interim Order 2

Order Details: Notice of Motion
Pdf Text: NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 1 of 6
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
MHCC010195392024
Notice of Motion Filed :
07.08.2024
Arguments Over :
26.03.2025
Decided on :
26.03.2025
Duration : 07 Months 21 Days
Exhibit No.13
Notice of Motion No. 105289 / 2024
from
Commercial Summary Suit No. 100467 / 2022
Applicants/
Defendant
Nos.1 to 4
1. Hi-Rock Construction Company
2. Hitesh Hirachand Dhokad
3. Sanjay Hirachand Dhokad
4. Sangeeta Hiralal Doshi
IN THE MATTER BETWEEN :
Plaintiff : Chandanmal Ghamandiram Mehta
Versus
Defendant
Nos.1 to 4
1. Hi-Rock Construction Company
2. Hitesh Hirachand Dhokad
3. Sanjay Hirachand Dhokad
4. Sangeeta Hiralal Doshi
Appearances
Plaintiff
: Adv. K. S. Tripathi
Defendant Nos.1
to 4/Applicants
: Adv. Kejeshri Thakar
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NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 2 of 6
CORAM : H. H. JUDGE SHRI S. B. BHANSALI
COURT ROOM NO.31.
DATE : 26.03.2025
*************************************************************
ORDER
1) Defendants No.1 to 4 have filed this Notice of Motion praying that
the Court be pleased to set down the suit for dismissal before the Judge
in Chamber under Rule 119 of the Bombay City Civil and Sessions Court
Rules, 1948 (For short “BCCC Rules”). The ground for this Notice of
Motion is that the plaintiff has failed to file a Summons for Judgment
within 06 months from the date of filing of the plaint as mandated by
the aforesaid Rule.
2) By affidavit in reply (Exh.15), the plaintiff opposed the Notice of
Motion on the ground that the defendants’ appearance/vakalatnama
was recorded on November 06th, 2023. Within 6 months from the said
date i.e. on 08.02.2024, the plaintiff took out a Summons for Judgment.
In view there of, the plaintiff seeks dismissal of the Notice of Motion.
3) I have heard the Ld. counsel appearing for the plaintiff and
defendants. Their submissions are consistent with the contentions raised
in the affidavit in support of Notice of Motion and affidavit in reply,
respectively. To avoid unnecessary repetition, the details of their
submissions are not being reiterated. Perused record. Points for
consideration, findings and reasons are as under:
Points Findings
1 Whether defendants are entitled to
the relief sought in the Notice of
Motion?..............................................
Negative
2 What Order? ………………………….. As per final order.
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NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 3 of 6
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
4) Pertinently, the defendants have filed this notice of motion to set
down the caption suit and to place before the Judge in Chamber for
dismissal under Rule 119 of the BCCC Rules.
5) Perusal of the record shows that:
- The suit was filed on 25.08.2022.
- The defendants were served with writ of summons on
24.03.2023.
- The defendants failed to appear within stipulated time after
receiving the writ of summons.
- The defendants filed Notice of Motion No.102186/2023 for
condonation of delay in their appearance in the matter.
- By an order dated November 06th, 2023, the Notice of Motion
was allowed subject to costs of Rs.2,000/-.
6) Notably, on February 08, 2024, the plaintiff filed a draft Summons
for Judgment (Exh.07), availing provisions of Order XXXVII Rule 2(2) of
Code of Civil Procedure,1908. The Court granted leave to register the
same. Accordingly, the summons for Judgment was registered and
numbered as Summons for Judgment No.100054 / 2024.
7) It appears that after service of the Summons for Judgment upon
the defendants, they filed their reply, seeking leave to defend the suit.
8) In this view of the matter, it is not open to the defendants to
change direction and take the matter in reverse by taking out this
Notice of Motion, especially after proceeding ahead and submitting to
the jurisdiction of the Court by filing reply to the Summons for
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NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 4 of 6
Judgment and seeking leave to defend.
9) Even assuming, for the sake of argument, that the present Notice
of Motion requires consideration, Rule 119 of the BCCC Rules stipulates
that a Summons for Judgment must be filed within 6 months from the
date of filing of the plaint. However, in the event of the plaintiff’s failure
to take out a Summons for judgment within the stipulated time, the
Rule mandates that the Court shall set down the matter and place it
before the Judge in Chamber for exercising its discretion.
10) I must clarify that as per the extent assignment, there is no
designation of a Chamber Judge. Consequently, the discretion u/Rule
119 is to be exercised by this Court, which shall of course be done
judiciously.
11) A perusal of the record reveals that since filing of the plaint, the
plaintiff, through his counsel, has been regular in attending to the suit.
The plaintiff duly served the writ of summons on the defendants in
accordance with law and rules.
12) Notably, it were the defendants who filed a Notice of Motion
seeking condonation of delay in not entering their appearance within
the stipulated time. In view of these procedural aspects and plaintiff’s
engagement in contesting the defendants’ Notice of Motion, it is evident
that the plaintiff was unable to file the summons for judgment within
the time stipulated u/Rule 119 of the BCCC Rules.
13) Moreover, it is well known that the procedure prescribed under the
BCCC Rules, 1948, is not meant for punishing parties, but to avoid
delay and unnecessary costs in suits, which can be easily disposed of
and which do not involve elaborate issues or elaborate evidence.
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NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 5 of 6
14) In any case, the plaintiff has filed Summons for Judgment within 6
months from the date of appearance of the defendants and therefore,
the Notice of Motion deserves no consideration and therefore liable to
be dismissed. Accordingly, I answer Point No.1 in the Negative and to
answer point no.2, I proceed to pass the following order :
ORDER
1. The Notice of Motion No. 105289 / 2024 is dismissed.
2. No order as to costs.
3. Order dictated and pronounced in Open Court.
4. Proceeding of Notice of Motion No. 105289 / 2024 is closed.
5. Record of Notice of Motion No. 105289 / 2024 shall be part of Commercial
Summary Suit No. 100467 / 2022.
Mumbai
Dated : 26.03.2025
(S. B. Bhansali)
District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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NM No. 105289 / 2024
Chandanmal – Hi-Rock
Order (Exh.13) 6 of 6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
29.03.2025 11.35 a.m. Sonali S. Sawant
Stenographer - Grade III
Name of the Judge HHJ Shri. S. B. Bhansali
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
26.03.2025
Judgment/order signed by P.O on 28.03.2025
Judgment/order uploaded on 29.03.2025
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