Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.35052019 ORDER 1
MHCC010095632019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3505 OF 2019
IN
SUMMARY SUIT NO.261 OF 2019
Champa Gul Ahuja … Plaintiff
Vs.
M/s. Ahuja Properties and
Associates And Ors
… Defendants
Appearances:
Adv. Memoon i/b Bhuta and Associates for the plaintiff .
Adv. Madhukar Mulay for defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 6th December, 2021
ORDER
1. This Notice of Motion is filed by defendants with request to
set aside the order dated 04/04/2019. The defendants further
requested to condone delay of 129 day's in filing 'Vakalatnama' on
record.
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NM No.35052019 ORDER 2
2. It is the case of the defendants that the defendant No.1 is
partnership firm, other defendants are partner of the defendant No.1.
The Suit summons was served on 14/03/2019. The concerned clerk is
received summons but inadvertently failed to forward the same to legal
department. Therefore, there is delay in filing vakalatnama within
prescribed period. On 04/04/2019 i.e. first day of the suit, on that day
the advocate for defendants have appeared on record, but he was held
up in another Court. He has requested to mark his presence. However,
the Court has directed to defendants to tender Notice of Motion instead
Chamber Summons. Thereafter, there is delay to tender Notice of
Motion on record. Consequently, the defendants requested the condone
delay and allow them to contest the suit by setting aside the order dated
04/04/2019.
3. In reply, the plaintiff strongly opposed Notice of Motion. If
is his submission that actually 174 day's delay in filing Notice of Motion.
But, falsely defendants have shown only 129 day's. As per statement of
the plaintiff on 12/03/2019, Suit Summons was duly served on
defendants but they failed to appear on record. However, on
04/04/2019 the advocate of defendants was present but he has nigher
taken necessary steps nor file vakalatnama on record. Accordingly,
Court has passed order on 04/04/2019 against defendant, and the suit
proceeded Exparte. After passing Exparte order the suit was kept for
Exparte evidence against defendants. The plaintiff further submitted
that under Order 37 Rule 7 of the CPC, the Court can excuse delay for
sufficient cause but here no sufficient cause is made out from the side of
the defendants. Therefore, the plaintiff has strongly opposed the Notice
of Motion.
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NM No.35052019 ORDER 3
4. Heard respective advocates of plaintiff and defendants, the
plaintiff has relied upon two citations i.e.
1. In the case of, (M/S SCG CONTRACTS INDIA PVT. LTD. Vs.
K .S. CHAMANKAR INFRASTRUCTURE PVT. LTD. & ORs,) In
the Supreme Court, of India, CIVIL APPELLATE JURISDICTION,
( Before, ROHINTON FALI NARIMAN, VINEET SARAN) in
( Civil Appeal No.1638 of 2019,) Arising out of Special Leave
Petition (C) No.103/2019, (decided on February 12, 2019).
2. In the case of, (OK PlayIndia Pvt. Ltd. Vs. A P
Distributors and Another,) In the High Court of Delhi at New
Delhi ( Before ASHA MENON, J.) (CM (M) 346/2020 and CM
APPL. 10013/2020) ( By the Petitioner u/S 151 CPC for stay),
(Decided on August 17, 2021) ( Reserved on : 16th July,2021)
In first citation the Hon'ble Supreme Court has discussed time limit for
filing written statement, after amendment in the Code of Civil
Procedure. In second citation Hon'ble Delhi High Court held that Order
VIII Rule 10 not permits to extend the time to file written statement
beyond the period of 120 day's.
5. Here as per statement of plaintiff there is 174 day's delay
in filing written statement. Even at the time of the argument, the
defendants has not denied the time limit mentioned by the plaintiff in
reply. Therefore, primafacie it cannot be said that there is 174 day's
delay in filing Notice of Motion. From record it appears that on
04/04/2019, the advocate of defendants has appeared on record. Here
there is no dispute regarding service of summons on defendants, but it
is the case of the defendants that their clerk has received summons, but
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NM No.35052019 ORDER 4
he failed to inform the same to legal department. Therefore, there is
delay. However, when the advocate of defendants was appeared on
record on 04/04/2019 and even after Exparte order is passed i.e.
01/08/2019, then why he has not taken steps on record. Therefore, the
suit is proceeded ahead and reached up to the final argument of
plaintiff. At that time the defendants came on record and requested to
set aside Exparte order and allow them to contest the suit. Under Order
35 Rule 7 sufficient cause is necessary here no sufficient cause is made
out by defendants to condone delay and intended to contest the suit.
Therefore, in the interest of justice, by paying compensatory costs to
plaintiff for delay, it is necessary to allow defendants to contest the suit.
Hence, following order:
ORDER
1. Notice of Motion No.3505 of 2019 is made absolute
subject to costs of Rs.5000/ (Rupees Five Thousand
only) to the plaintiff.
2. The defendants are directed to pay costs within one
months from the date of this order.
3. Notice of Motion No.3505 of 2019 stands disposed
of accordingly.
sd/
(C.V. PATIL)
Adhoc Judge,
Date : 06/12/2021 City Civil Court, Gr. Bombay
Dictated on : 06/12/2021,
Transcribed on : 13/12/2021,
HHJ signed on : 13/12/2021
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NM No.35052019 ORDER 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
14/12/2021 4.35p.m. Mr. Suraj Ambekar
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
06/12/2021
JUDGEMENT /ORDER signed by P.O. on 13/12/2021
JUDGEMENT /ORDER uploaded on 14/12/2021
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