Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010105692019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3816 OF 2019
IN
SUMMONS FOR JUDGMENT NO.165 OF 2017
IN
SUMMARY SUIT NO.237 OF 2016
Nemani Steels Pvt. Ltd. ] … Plaintiff
V/s
Shri Ram Fabrication ] ... Defendant
Appearances :-
Mr. Maulik Tanna, Ld. Adv. for plaintiff.
Mr. Borade, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 7th April, 2021
ORAL ORDER
1. Defendant took out this Notice of Motion for condonation
of delay in filing reply to the Summons for Judgment and permission to
file reply on record to the Summons for Judgment.
MHCC010105692019
-- 1 of 7 --
- 2 - NM 3816/2019 in
Sum Suit 237/2016
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and affidavit in reply of plaintiff to the Summons for Judgment.
3. Heard Learned Advocate Mr. Maulik Tanna for plaintiff.
Advocate for defendant and defendant remain absent. Therefore,
arguments of defendant is closed as per Roznama / Noting dated
24.03.2021.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether delay in filing reply to the
Summons for Judgment can be condoned?
In the affirmative.
2. Whether defendant can be permitted to
file reply to the Summons for Judgment ?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of the defendant that plaintiff has
taken out Summons for Judgment No.165 of 2017 which is served upon
the Advocate of defendant through Office staff of the defendant
Advocate on 27.06.2017.
6. Defendant Firm is situated at District sangli. The Learned
Advocate for defendant was absent for near about 10 days from
26.06.2017 as he was suffering from stomach infection and fever.
-- 2 of 7 --
- 3 - NM 3816/2019 in
Sum Suit 237/2016
7. Deponent Mr. Amit Mali, the proprietor of the Defendant
Firm further mentioned in affidavit in support of Notice of Motion that
on 12.07.2017 his Advocate came to know about the service of
Summons for Judgment when the matter was for hearing of the present
suit. The said proprietor used to travel because of his office work. He
was out of station during the said relevant period. Consequently he
could not give instructions to his Advocate for the purpose of
preparation of reply to the Summons for Judgment.
8. It is further contention of the proprietor of the defendant
Firm that he is carrying his business at Sangli. He is residing with his
family at Village Kavlapur, District Sangli. He could not give
instructions to his Advocate for preparation of reply because of frequent
travelling as well as the illness of his father. Therefore, there is delay in
filing the reply to the Summons for Judgment. It be condoned and
defendant be permitted to file reply to the Summons for Judgment.
9. In brief, it is contention of the plaintiff that this Notice of
Motion is an abuse and misuse of process of law. False and frivolous
grounds are mentioned in the affidavit in support of the Notice of
Motion. Plaintiff denied all the adverse contentions raised in the Notice
of Motion. According to the plaintiffs there is no document to support
the contentions of defendant mentioned in the affidavit in support of
Notice of Motion. Defendant is negligent and lethargic to proceed with
the matter. Therefore, Notice of Motion be dismissed.
10. Perused Summons for Judgment No.165 of 2017. I have
also perused Affidavit of service in respect of the said Summons for
-- 3 of 7 --
- 4 - NM 3816/2019 in
Sum Suit 237/2016
Judgment. It is mentioned in the affidavit of service that the office of
the defendant’s Advocate received copy of the Summons for Judgment
on 27.06.2017. This Notice of Motion is tendered on 30.10.2017.
Affidavit in support of Notice of Motion is affirmed on 27.10.2017. The
Notice of Motion is registered on 11.10.2019.
11. Perused Notice of Motion No.1890 of 2018. Defendant had
taken out said Notice of Motion for restoration of unregistered Notice of
Motion filed by defendant on 30.10.2017 i.e. the present Notice of
Motion. The said Notice of Motion No.1890 of 2018 is decided after
hearing both sides on 30.10.2019. The said Notice of Motion is allowed
subject to costs of Rs.10,000/- (Rs.Ten Thousand only) to be paid by the
defendant to the plaintiff. Thereafter, after compliance of the said order
dated 30.09.2019 the present Notice of Motion is registered. One of the
ground for restoration of the said unregistered Notice of Motion
mentioned in affidavit of Notice of Motion No.1890 of 2018 is that wife
of proprietor of the defendant was not well for considerable time.
12. Copy of the Summons for Judgment No.165 of 2017 is
served upon Advocate of the defendant on 27.06.2017. This Notice of
Motion is tendered on 30.10.2017.
13. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant and the defendant
may at any time within ten days from such service enter an appearance
either in person or by pleader and he shall file in Court an address for
services of Notice on him.
-- 4 of 7 --
- 5 - NM 3816/2019 in
Sum Suit 237/2016
14. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
15. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
16. As per Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure defendant should file reply to the Summons for Judgment
within 10 days from the date of service of Summons for Judgment.
There is delay in filing the reply to the Summons for Judgment.
Considering grounds of delay mentioned in the Notice of Motion and
for the purpose of deciding Summons for Judgment on merit, I am of
the opinion that opportunity can be given to the defendant to file reply
to the Summons for Judgment. Hence, I record my findings to point
No.1 and 2 in the affirmative and point No.3 Notice of Motion is
allowed as per final order. Hence, following order:
-- 5 of 7 --
- 6 - NM 3816/2019 in
Sum Suit 237/2016
ORDER
Notice of Motion no. 3816 of 2019 in Summons for judgement no. 165
of 2017 in Summary Suit no. 237 of 2016 is allowed as under-
1. Delay in filing reply to the Summons for judgement no. 165 of 2017
is hereby condoned.
2. Defendant is allowed to file reply to the Summons for judgement
no. 165 of 2017.
3. Due to corona virus Covid-19 Pandemic, it is not proper to give
short period to the defendant to file reply to the Summons for
Judgement and therefore time granted to the defendant to file reply till
next date.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 07/04/2021 City Civil Court, Gr. MUMBAI
Dictated on : 07/04/2021
Transcribed on : 09/04/2021
Checked on : 09/04/2021
Signed on : 09/04/2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 6 of 7 --
- 7 - NM 3816/2019 in
Sum Suit 237/2016
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.04.2021 at 03.45 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 07.04.2021
Judgment/order signed by P.O. on 09.04.2021
Judgment/order uploaded on 09.04.2021
-- 7 of 7 --