Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.3550/19 1 Order.
MHCC010096542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.3550 OF 2019
IN
SUMMARY SUIT NO.727 OF 2018
1. Meena Prakash Soni
2. Poonam Prakash Soni
3. Pooja Prakash Soni ..Applicants
In the matter between
K.J.A. Padmanabh ..Plaintiff
Versus
1. Meena Prakash Soni
2. Gopi Alias Prakash Soni
3. Poonam Prakash Soni
4. Pooja Prakash Soni )...Defendants
Appearance:-
Adv. N.S. Parte for plaintiff.
Adv.Mangesh Sawant for Defendant No.1,3 and 4.
CORAM : HER HONOUR JUDGE MRS. M.M.DESHPANDE.
(COURT NO.66).
DATE : 10th September, 2025.
ORDER
1. Defendant No.1,3 and 4 have filed present Notice of Motion
praying therein to condone the delay of 167 days caused in filing reply
to the Summons for Judgment and to take the reply on record.
2. The contention of Defendant No.1,3 and 4 is that the plaintiff
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NM No.3550/19 2 Order.
has filed present summary suit for recovery of Rs.11,00,000/- alongwith
interest against the Defendants. Summons for judgment in the present
summary suit was duly served upon their earlier Advocate. But he
refused to accept the service and failed to remain present before the
court. It is further contended that the plaintiff has malafidely filed the
present summary suit to recover purported loan on the basis of
dishonoured cheque which was deposited on 6.11.2017 i.e. the date of
death of deceased Prakash Soni. Defendant No.1,3 and 4 want to file
their reply to the Summons for Judgment. There was no deliberate
intention or negligence on the part of Defendant No.1,3 and 4. They
have a good case on merit and if an opportunity is given to them to
defend the present suit, they have every chance to succeed. Therefore,
Defendant No.1,3 and 4 prayed to condone the delay caused in filing
reply to the Summons for Judgment and allow Notice of Motion.
3. The plaintiff has filed reply and contended that Notice of Motion
taken out by Defendant No.1,3 and 4 is false, frivolous and vexatious
and taken out with sole and oblique motive to delay the proceedings
filed by the plaintiff. Present Notice of Motion is not maintainable. In
the proceedings under Order XXXVII and upon service of summons for
judgment, the defendant is required to obtain leave to defend and not
affidavit in reply. Defendant No.1,3 and 4 have not filed affidavit in
reply alongwith present Notice of Motion and therefore, on that count
alone present Notice of Motion taken out by Defendant No.1,3 and 4
deserves to be dismissed with costs. The rights of defendants to seek
leave to defend was closed by the court on 22.4.2019. Defendant
No.1,3 and 4 are not praying for setting aside order dt.22.4.2019. The
reason cited by Defendant No.1,3 and 4 for seeking condonation of
delay in filing the affidavit in reply to Summons for Judgment is devoid
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NM No.3550/19 3 Order.
of merits. Defendant No.1,3 and 4 have alleged that they have to
approach another lawyer. The plaintiff denied that any harm or loss will
be caused to the Defendant No.1,3 and 4, if delay is not condoned.
Therefore, it is prayed that Notice of Motion taken out by the
Defendant No.1,3 and 4 be dismissed with costs.
4. Heard learned counsel for plaintiff and learned counsel for
Defendant No.1,3 and 4. Gone through the record.
5. On perusal of record and proceedings, it appears that the plaintiff
has filed present summary suit for recovery of Rs.11,00,000/-. It is a
fact that Defendant No.1,3 and 4 want to contest the suit by filing reply
and want to put their defence. It is also a fact that suit proceeded
without reply of Defendant No.1,3 and 4. It is also a fact that there is
delay of 167 days in filing the reply to the Summons for Judgment.
Defendant No.1,3 and 4 want to put their defence by filing reply. Their
contention is that their earlier Advocate did not accept the summons by
the plaintiff and therefore, suit proceeded without reply. Considering
the nature of the suit and to decide the matter on merit and in order to
avoid multiplicity of the litigation, I find it just and proper to allow the
present Notice of Motion and to allow Defendant No.1,3 and 4 to file
reply by putting their defence. At the same time, it is also a fact that
due to the delay caused in filing reply, inconvenience is caused to the
plaintiff. Therefore, it is necessary to compensate the plaintiff in terms
of money. Hence, following order is passed :-
ORDER
1. Notice of Motion No.3550 of 2019 is allowed in terms of prayer
clause (a) and (b) only.
2. 167 days delay caused in filing reply to the Summons for
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NM No.3550/19 4 Order.
Judgment on behalf of Defendant No.1,3 and 4 is hereby condoned on
payment of costs of Rs.5,000/- to the plaintiff.
3. Defendant No.1,3 and 4 shall pay costs of Rs.5000/- to the
plaintiff on or before next date.
4. On payment of costs, reply to the Summons for Judgment be
taken on record.
5. Notice of Motion No. 3550 of 2019 is disposed off accordingly.
(MRS. M.M.DESHPANDE)
Date : 10.9.2025 Judge,
City Civil Court,
Mumbai. (Court No.66)
Dictated on : 10.9.2025.
Transcribed on : 11.9.2025.
Signed on : 11.9.2025.
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NM No.3550/19 5 Order.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 11.9.2025 at 6.06 p.m.
Name of the Judge HHJ MRS. M.M.DESHPANDE
Court No.66
Date of Pronouncement of Order 10.9.2025
Order signed by P.O. on 11.9.2025
Order uploaded on 11.9.2025
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