Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1710/21 in Comm. Suit No. 169/19. 1 Order.
MHCC010055492021
Presented on : 06-08-2021
Registered on : 06-08-2021
Decided on : 15-03-2022
Duration : 0 years, 7 months, 9 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1710 OF 2021
IN
COMMERCIAL SUIT NO. 169 OF 2019
M/s SOGECO International S.A. ...Plaintiff
Versus
M/s Cargoways Shipping Pvt. Ltd. ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 15th MARCH, 2022.
Shri Rajesh Talekar, Advocate for defendants no.1 and 2.
Miss Vidhya Iyengar, Advocate for the plaintiff.
ORDER
1. Defendants no.1 and 2 have filed present notice of motion
for setting aside exparte judgment delivered in Commercial Suit No.
169/2019 on 09/03/2021. Perused notice of motion, affidavit in reply,
preliminary objection of the plaintiff (Exh.6 in n/m proceeding) and
written notes of arguments of the plaintiff (Exh.7 in n/m proceeding). I
have gone through the suit proceeding. Heard learned counsel Shri
Rajesh Talekar for the defendants and learned counsel Miss Vidhya
Iyengar for the plaintiff.
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N/m No. 1710/21 in Comm. Suit No. 169/19. 2 Order.
2. On perusal of the suit proceeding, it appears that an
application for production of documents for due service of summons to
defendants is filed by learned counsel Vidhya Iyengar for the plaintiff on
06/01/2020. Two postal receipts and two acknowledgements are
annexed with this application. Original writ of summons as well as
affidavit of service are not filed with this application. There is only one
writ of summons (Exh.6) placed on record. Writ of summons (Exh.6)
shows that it was issued on 17th / 18th January, 2020.
Acknowledgements filed with application dated 06/01/2020 shows that
service is effected in the month of December2019. Postal receipts show
that RPAD articles were booked on 12/12/2019. It means that the
plaintiff should have placed on record writ of summons issued either on
12/12/2019 or before it, but there is no such writ of summons available
on record. Therefore, the court does not appear to have considered
these acknowledgements while passing without written statement order
against defendant no.1 and exparte against defendant no.2.
3. Record further shows that the plaintiff had placed on
record affidavit of service (Exh.5) on 16/10/2020 with original writ of
summons (Exh.6) having bailiff report dated 20/02/2020. Contents in
bailiff report reveals that defendants no.1 and 2 were not found at the
address of M/s. Cargoways Shipping Pvt. Ltd., 203, Elphinston House,
17, Murzban Road, Mumbai400001 and on enquiry, he came to know
from Mr. Santosh Pawar that defendants no.1 and 2 already left the
premises three years ago. Affidavit of service (Exh.5) contains details of
issuance of the notices regarding preinstitution mediation. It is further
stated in affidavit of service (Exh.5) about bailiff report regarding
shifting of the defendants' office and appearance of defendant no.1 in
the matter and also about filing of vakalatnama. Defendant no.1 had
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N/m No. 1710/21 in Comm. Suit No. 169/19. 3 Order.
appeared through Adv. Rajesh Sahni on 21/02/2020 and filed V/P
Exh.6. (Exh.6 came to be given twice i.e. to original writ of summons
and vakalatnama of defendant no.1.). Considering appearance of
defendant no.1, no written statement order is passed against defendant
no.1 on 06/01/2021.
4. On 06/01/2021 the Court directed the plaintiff to intimate
by email to defendant no.2 that in failure to remain present on next
date the Court may proceed for exparte order. Record further shows
that the plaintiff filed one more affidavit of service (Exh.7) on
29/01/2021 regarding intimation given to defendant no.2 at email ID
brk@cargowaysindia.net in respect of roznama copy and intimating
directions of this Court. On 29/01/2021, exparte order came to be
passed against defendant no.2 relying upon affidavit of service /
intimation (Exh.7). Subsequently, evidence of the plaintiff came to be
recorded on 04/03/2021 and judgment is pronounced on 09/03/2021.
5. In the light of discussion in above three paragraphs, it is
clear that appearance of defendant no.1 is taken into account while
passing no written statement order against him. Similarly, intimation of
roznama of the court is given to defendant no.2 on above referred e
mail ID and it is considered for passing exparte order against defendant
no.2. So far as two acknowledgements filed with application dated
06/01/2020 are concerned, they are not supported with affidavit of
service and writ of summons issued either on the date of dispatch of
RPAD packets or prior to it. For this reason, two acknowledgements
filed with application dated 06/01/2020 are not sufficient to conclude
that defendants no.1 and 2 were duly served with writ of summons. In
short, there is total lack of material to prove proper service of writ of
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N/m No. 1710/21 in Comm. Suit No. 169/19. 4 Order.
summons upon the defendants. There is no material to show that
copies of the plaint and documents were supplied or served upon the
defendants.
6. After analyzing the aspect of service of writ of summons,
legal effect of prevailing position regarding service of writ of summons
in the matter is required to be assessed. As per observations of Hon'ble
Bombay High Court in the case of Axis Bank Ltd. V/s. Smt. Mira
Gehani (N/m Commercial Division No. 196/2018 in Commercial
Suit No. 159/2017 decided on 27/02/2019) in paras 96, 99 and 101,
period of 120 days for filing written statement will commence from the
date of the writ of summons and not the date the defendant first enters
appearance. Hon'ble Bombay High Court further observed that in the
event defendant/its advocate enters appearance and by consent agrees
to waive service, the period of 120 days will commence from the date of
such service. As defendant no.1 has not waived service of writ of
summons, matter has not reached the stage of counting 120 days period
for filing written statement by him in accordance with proviso to Rule 1
of Order V, proviso to Rule 1 of Order VIII and proviso to Rule 10 of
Order VIII of the CPC.
7. Similarly, it is necessary to file details of email ID of the
defendant on affidavit for sending writ of summons through email as
per Rule 5(a) of Bombay High Court Service Of Processes By Electronic
Mail Services (Civil Proceedings) Rules, 2017. Writ of summons does
not appear to have been issued through email and served upon
defendant no.1. The plaintiff has not followed the procedure as
prescribed in the Rules of 2017.
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N/m No. 1710/21 in Comm. Suit No. 169/19. 5 Order.
8. In short, the matter should not have proceeded without
written statement against defendant no.1 and exparte against
defendant no.2 for want of proper service of writ of summons and in
absence of waiver of service.
9. In addition to it, evidence came to be recorded and
judgment came to be pronounced in the month of March2021. It is
pertinent to note that during this period guidelines of Hon'ble High
Court were in operation in view of fluctuating situation of Covid19
pandemic. Directions were being modified frequently after assessing
the situation. The defendants are old aged persons and they were
justified in abstaining from attending the court proceeding during
abruptly waning and waxing situation of Covid19 pandemic. Hon'ble
Supreme Court had also taken the note of Covid19 pandemic and
extended period for filing various proceeding till 28/02/2022 as per
directions given in Suo Moto Writ Petition (C) No. 3/2020 from time to
time. The defendants had two just reasons for setting aside the exparte
judgment and decree i.e. (i) the summons was not duly served upon
them and (ii) they were prevented by sufficient cause from appearing
when the suit was called on for hearing. For all these reasons, the
defendants have succeeded in demonstrating the ground for setting
aside exparte judgment and decree in the suit as per Order IX Rule 13
of the CPC. Though learned counsel Shri Rajesh Talekar for the
defendants has given much stress upon merit of the matter and it is
opposed by learned counsel Miss Vidhya Iyengar for the plaintiff, no
comment is required to be passed on it while dealing with limited
aspect of presence or absence of sufficient grounds to set aside the ex
parte judgment and decree. Hence, I pass the following order :
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N/m No. 1710/21 in Comm. Suit No. 169/19. 6 Order.
ORDER
1. Notice of Motion No. 1710/2021 is made absolute in term
of prayer clause (a).
2. Exparte judgment and decree passed in Commercial Suit
No. 169/2019 is set aside.
3. Commercial Suit No. 169/2019 is restored to its original
number.
4. Both sides are directed to appear in Commercial Suit No.
169/2019 on 12/04/2022.
5. The proceeding of N/m No. 1710/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 15/03/2022. Mumbai.
1. Dictated online on : 15/03/2022.
2. Corrected on : 16/03/2022.
3. Signed on : 16/03/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1710/21 in Comm. Suit No. 169/19. 7 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/03/2022. 3.42 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 15/03/2022.
Judgment/Order signed by P.O. on 16/03/2022.
Judgment/Order uploaded on 16/03/2022.
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