Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion
No. 3663 of 2019
MHCC010099982019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3663 OF 2019.
IN
Short Cause Suit No.4276 of 2010.
Vidyadhar Baliram Kamble. … Applicant
(Deft No.1 )
In the matter between
State Bank of India. …Plaintiff
V/s.
1. Vidyadhar Baliram Kamble and Ors. ...Defendants
Appearance:
Adv. Jyotsna Puthran along with Suraj Sule for Plaintiff.
Adv.Pravin Singh for Defendant No.1.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 21st SEPTEMBER, 2022.
ORDER
Defendant No.1 has taken out this Notice of Motion to set
aside Exparty judgment and decree dated 17.01.2019 passed in suit
No. 4276 of 2010.
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2. It is contended that defendant No.1 has never been served
in the suit in accordance with the law. The defendant came to know
about the judgment and decree dated 17.01.2019 after bank officer
started threatening and harassing him and his family members since
January 2019. He was in Gujarat State. The suit is bad inlaw and
suffers from several irregularities. There is another suit regarding suit
premises in the Court at Thane bearing Special Civil Suit No. 249 of
2009 filed by Smt. Kavita Anand Kadam and plaintiff is the party to the
said suit. Plaintiff was aware of the said suit. Still in 2010, this suit was
filed. The possession of the suit premises is never handed over to
defendant No.1 by the builder. After getting knowledge of the judgment
and decree, defendant No.1 had appointed one advocate but he did not
take any steps for about 56 months and thereafter returned the papers.
Therefore, there is delay. It is not intentional. Plaintiff has obtained ex
party judgment and decree by playing fraud and misleading the Court.
Therefore, said decree needs to be set aside and defendant No.1 is
required to be given an opportunity to present his case. Hence, it is
prayed that Notice of Motion be allowed and judgment and decree
dated 17.01.2019 be set aside.
3. Plaintiff contested the Notice of Motion by filing reply.
Therein it is contended that the Notice of Motion is not maintainable. It
is filed to frustrate the claim of the plaintiff. The defendant No.1 was
served with summons by the Court in the year 2010. He appeared in
the Court from 27.04.2018 regularly, after service of Chamber
Summons No.82 of 2017 which was filed by the plaintiff for
amendment of the plaint. The advocate appearing for defendant No.1
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No. 3663 of 2019
had taken inspection of the file and was very well aware of the exparte
proceeding against the defendant No.1. However, no attempt was
made on behalf of the defendant No.1 to set aside the exparte order
and to file written statement. The delay is not properly explained.
Ultimately, by contending that there is no merit in the Notice of Motion,
it is prayed that the same be dismissed.
4. Heard Ld. advocate Shri Pravin Singh for defendant No.1
and Ld. advocate Shri Jyostna Puthran for plaintiff. The Ld. advocate
for defendant No.1 submits that though an advocate appeared in the
suit, he did not attempt to file written statement. It is fault on the part
of the advocate. Therefore, on this ground, opportunity cannot be
denied to defendant No.1 to contest the suit by setting aside the ex
parte decree. He further submits that defendant No.1 has not signed
the acknowledgment card. The service of Writ of Summons is irregular.
The affidavit of the bailiff regarding the service is not as per the
requirements of the rules. Defendant No.1 has filed the Notice of
Motion immediately after knowledge of the decree. In the above
circumstances, he prays that notice of Motion be allowed.
5. Per Contra, Ld. advocate for plaintiff vehemently submits
that there is delay of six months in taking out the Notice of Motion. It is
not properly explained. The writ of summons was served upon the
defendant No.1 in the year 2010. There is no irregularity in the
service. Advocate for defendant No.1 had appeared in the suit. The
copy of amended plaint was served upon the advocate of defendant
No.1. Therefore, sufficient opportunity was given to the defendant
No.1. Hence, Notice of Motion is liable to be dismissed.
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6. Perused the record of the suit. It reveals that the suit was
initially filed before the Hon'ble Bombay High Court in its ordinary
Original Civil Jurisdiction, in the year 2010. It is transferred to this
Court in the year 2012. As the defendant was already served, vide
order dated 12.02.2014, the Court proceeded exparte against the
defendants. Service affidavit filed by bailiff on 18.10.2010 shows that
defendant No.1 was served with writ of summons by registered post
and the acknowledgment bearing signature of defendant No.1 is
annexed with the service affidavit.
7. In the entire affidavit, defendant No.1 has not disputed the
signature appearing on the registered post acknowledgment. Ever after
plaintiff raised the said contention in the reply, defendant No.1 has not
filed affidavit in rejoinder disputing the said fact. Advocate for
defendant No.1 submitted that the signature on AD Card is not that of
defendant No.1. However, in absence of any statement in affidavit, this
submission is irrelevant.
8. The record of the suit further shows that in the year 2017,
plaintiff had filed chamber summons bearing Chamber Summons No.82
of 2017. It was served upon the defendants. One advocate Ranjana
appeared for defendant No.1 on 27.04.2018. Thereafter, on
02.07.2018 she filed search praecipe and the same was allowed.
Advocate for defendant No.1 appeared in the suit till 01.11.2018.
Thereafter on 17.01.2019 the suit came to be decreed exparte.
9. The record of the suit, though indicates that after transfer
of the suit to this Court, transfer notice was not issued to the
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defendants, in 2018, appearance was filed on behalf of defendant No.1
in the suit by one advocate. The advocate for the defendant No.1 had
also taken the search of the file. Therefore, it cannot be said that
defendant No.1 had no knowledge of pendency of the suit.
Interestingly, defendant No.1 has not made a single whisper in his
affidavit about his appearance in the suit.
10. There appears no irregularity in the service of writ of
summons. Moreover, in view of the fact that defendant No.1 appeared
in the suit, it is clear that defendant No.1 had knowledge that the suit
was pending for hearing. There is no explanation at all for failure of
defendant No.1 to seek setting aside exparte order and to file written
statement. The other grounds raised by defendant No.1 for setting aside
the exparte judgment and decree are not relevant under Order 9 Rule
13 of the Code of Civil Procedure, 1908 In these circumstances, the
Notice of Motion deserves to be dismissed. In the result, following
order is passed
ORDER
1. Notice of Motion No. 3663 of 2019 is dismissed with costs.
2. Notice of Motion No.3663 of 2019 disposed of accordingly.
(S.B. Pawar)
Judge,
Dated: 21/09/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 21.09.2022
Dictated on : 21.09.2022
Transcribed on : 21.09.2022
Checked & Signed on : 24.09.2022
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No. 3663 of 2019
.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.09.2022 at 2.45 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 21.09.2022
Order signed by P.O. on 26.09.2022
order uploaded on 26.09.2022
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