Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3964/2019 ..1.. In S.C.Suit No.2472/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3964 OF 2019
IN
S.C. SUIT NO. 2472 OF 2018
CNR NO : MHCC01-010983-2019
Mr. Rajesh Saichand Sharma,
Aged : 45 Years,
Residing At : Room No. 907, 9th Floor,
Shree Siddhi Sagar SRA CHS Ltd.,
Belani Nagar, Worli, Mumbai - 400 025.
At present residing in USA at 204,
10th Street, Apt., 601, Jersy City,
NJ 07302, U.S.A. ...Plaintiff
Versus
Mr. Subhash Chandra Sechan Sharma,
Aged : 46 Years,
Residing At : Room No. 907, 9th Floor,
Shree Siddhi Sagar SRA CHS Ltd.,
Belani Nagar, Worli, Mumbai - 400 025. ...Defendant
Appearance :-
Mr. B. S. Yadav, Advocate for Plaintiff.
Mr. Nishikant Patil h/f Mr. Prashant Jadhav, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 3RD FEBRUARY, 2021.
ORAL ORDER
By this notice of motion the defendant has sought recalling
of order dated 11.01.2019 directing the suit to proceed
exparte against
the defendant on the ground that, he received the summons on
27.02.2019.
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Notice of Motion No.3964/2019 ..2.. In S.C.Suit No.2472/2018
2. It is the defendant’s case that, he had received the
summons on 27.02.2019. The plaintiff is his real brother, who has also
filed Suit No. 1273/2016. The Suit was referred for mediation on
18.07.2017 but it did not settle. Meanwhile the defendant was trying to
convince the plaintiff to settle the dispute through his mother. After
receiving summons in this suit, the Presiding Judge has adjourned
another suit for settlement on 28.02.2019. He was under
bonafide
belief that, the matter would be settled and so could not appear before
this Court on 11.01.2019. After getting knowledge of order dated
11.01.2019, he instructed his advocate and his advocate appeared in
the Court on 22.07.2019. The defendant was hoping for settlement and
so could not appear and file written statement within time. The
plaintiff visited India in August, 2019, and had a joint meeting in the
family in which the settlement was discussed but failed. The defendant
has not caused delay deliberately or intentionally. If the order is not set
aside, he will suffer great prejudice.
3. Notice of Motion is opposed by the plaintiff contending
that, the reasons for delay are false. The order dated 25.02.2011 is
intimated to the defendant which is acknowledged by him. The
defendant is perpetual defaulter. Another Suit No. 1273/2016 has
nothing to do with present suit. The defendant is in habit of defaulting
at every stage, even in another suit on flimsy grounds. Despite
knowledge of the proceeding of present suit the defendant did not
appear in time. There is no sufficient cause to shown to recall the order.
The delay is more than 9 months.
4. Perused. Heard advocate for the defendant. Gone through
the written notes filed by the plaintiff.
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Notice of Motion No.3964/2019 ..3.. In S.C.Suit No.2472/2018
5. The defendant has come with a case that, this Court has
passed order on 11.01.2019 and directed the suit to proceed
exparte
against him. It is his contention in the affidavit in support of notice of
motion that he received the summons on 27.02.2019 i.e. the date after
more than a month of the order dated 11.01.2019 by which the suit has
proceeded
exparte against him. The proceedings do indicate that, the
Writ of summons is served on the defendant on 03.11.2018 i.e. more
than two months prior to the date on which
exparte order is passed.
However, the defendant has come with absolutely unacceptable and
false story that, the suit summons is served upon him after passing of
exparte order. Considering this aspect itself the defendant is not
entitled to seek the recall of the order, as there is no explanation by him
why he could not appear on 11.01.2019. The explanation given by him
appeared to be about the circumstances that existed after the alleged
service of summons upon him i.e. on 27.02.2019. Further defendant
has also made false statement about appearance of his advocate, though
his advocate is appeared on 10.04.2019. The defendant has made a
false statement in affidavit that his advocate appeared on 22.07.2019.
Considering this conduct of the defendant the other grounds raised in
the affidavit seeking set aside of the order are not acceptable. The
defendant cannot be believed.
6. Considering the documents on record, the story put
forward by the defendant is falsified.
7. As per the defendant’s affidavit, the plaintiff visited India in
the month of August, 2019 and had a joint meeting with the family,
when the talks about settlement were discussed. This incident had
taken place after 7 months of passing the
exparte order. This itself
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Notice of Motion No.3964/2019 ..4.. In S.C.Suit No.2472/2018
indicates that, prior to August, 2019, the defendant has no occasion to
have talks of settlement with the plaintiff. It is defendant’s contention
that, under
bonafide belief that the matter would be settled, he could
not appear before this Court on 11.01.2019, the date on which the suit
has proceeded
exparte against the defendant. However, the
circumstances reveal that, the meeting for talks of settlement has
allegedly taken place in August, 2019, as per the defendant’s own
contention.
8. The defendant had sufficient time even prior to 11.01.2019
to appear in the suit and to file written statement as the summons was
served upon him on 03.11.2018. Even after 11.01.2019 the defendant
had sufficient time till filing this notice of motion. However, even
during that time nothing is done by the defendant. However, the
defendant has come with a false assertion that, the summons is served
on him on 27.02.2019 and his advocate for the first time appeared on
22.07.2019. Both his statements are falsified by the record of the
Court. Such a person cannot be believed and so the grounds for
condonation of delay do not inspire confidence. In these circumstances
the notice of motion is found meritless. Hence, following Order :-
ORDER
Notice of Motion No. 3964/2019 is dismissed with costs.
(AJIT N. MARE)
Judge,
Date : 03.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 03.02.2021
Transcribed on : 03.02.2021
HHJ Signed on : 04.02.2021
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Notice of Motion No.3964/2019 ..5.. In S.C.Suit No.2472/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.02.2021 4.47 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 03.02.2021
Order signed by P. O. on 04.02.2021
Order uploaded on 04.02.2021
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