Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Notice of Motion No.4054/2019
MHCC010111452019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO.4054 OF 2019
(CNR NO.MHCC01-011145-2019)
IN
EXECUTION APPLICATION NO.285 OF 2016
SUMMARY SUIT NO.3752 OF 2013 (DISPOSED OF)
M/s. Barmare Timber Traders )...Plaintiff
Versus
Mr. Sameer Kale )...Defendant
Appearance :-
Learned Advocate Paras Vira for plaintiff/decreeholder.
Learned Advocate Vivek Tripathi for defendant/judgment debtor.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 19/08/2024.
O R D E R
1 This notice of motion is taken out by the
defendant/judgment debtor for setting aside ex-parte decree passed in
Summary Suit No.3752 of 2013. It is the contention of defendant that
after service of writ of summons, he had engaged an advocate
Mr. Pushpraj Singh and instructed him to represent defendant in the
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..2.. Notice of Motion No.4054/2019
suit and give vakalatnama. He informed that he will file vakalatnama in
the suit proceeding and will take care of the proceeding, whereas in the
year 2017, said Mr. Pushpraj Singh approached me and took my
signatures on certain documents and informed that certified copies in
the matter had to be obtained and an application for restoration of suit
has to be filed. It appears that Mr. Pusphraj Singh did nothing in the
matter, even an execution proceeding have been started against the
defendant. It is further contended that on 03/10/2019, he received a
notice in the execution proceeding and came to know that his advocate
never appeared on his behalf in the suit proceeding and the suit was
decreed in favour of plaintiff as ex-parte. It is the contention of
defendant that due to the fault of his advocate, he was prevented to
appear in the suit proceeding, even having sufficient/good defence for
filing leave to defend, when the suit was called for hearing.
2 It is further contended that he was not aware of passing of
ex-parte decree against him till the receipt of notice of execution, his
advocate Mr. Pushpraj Singh has not filed any proceeding on his behalf
and has not appeared before the Court to seek leave to defend in the
suit proceeding. It is also the contention of defendant that it has good
reason for setting aside ex-parte decree, as the invoices mentioned in
the suit are raised in regular course of business, which were never in
accordance with the rates agreed, therefore, there were always
differences in the quantities of the goods being mentioned on the
challan/invoices raised. He had raised objection that plaintiff by letter
dated 02/04/2012, stopped doing business transaction with him.
Further it is contended that plaintiff has misused the blank cheque
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..3.. Notice of Motion No.4054/2019
tendered to him as security and had raised false invoices. Thus,
defendant is entitled for leave to defend the suit on merit. Lastly, it is
submitted that he should not be penalized for the fault committed by
his advocate and prayed for setting aside ex-parte decree.
3 Plaintiff resisted the contention by filing reply denying the
allegations of the defendant. He submitted that no sufficient reason is
mentioned to set aside the decree. It is submitted that after the receipt
of notice of execution, he did not appear; the attachment of immovable
property was passed, then it was found that the property was alienated
to a third person. Thereafter, plaintiff took steps for arrest of defendant
as per the provision of Order XXI Rule 38 of Code of Civil Procedure
and having found that the arrest application of defendant is filed, the
defendant has taken out this notice of motion with false contention. It is
denied that it was only the fault of the advocate. It is contended that
the defendant has issued the cheque towards repayment of invoices
which were dishonoured and the Court has rightly decreed the suit and
prayed for dismissal of notice of motion.
4 Heard rival parties at length. Perused the record, it reveals
that the writ of summons was served upon the defendant and on failure
to appear before the Court, decree came to be passed. The roznama of
execution proceeding also shows that the notice of chamber summons
was received by the judgment debtor. It appears from the roznama that
the judgment debtor/defendant did not appear after service of notice of
execution, the chamber summons No.1589 of 2016 was also taken out
by the purchaser of the property of defendant and same was served
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..4.. Notice of Motion No.4054/2019
upon the defendant as per the order in roznama dated 17/07/2017.
After the chamber summons No.1589 of 2016 was disposed off by
allowing the same and releasing the attachment of the property, the
decreeholder has taken further steps for arresting the defendant and
sending him to jail. After service of show cause notice, the defendant
appeared on 04/10/2019. Thus, it appears that the defendant has
avoided to appear in the execution proceeding even after service of
chamber summons on 17/07/2017, till the service of show cause notice
under Order XXI Rule 37 of Code of Civil Procedure and appeared on
04/10/2019. Thus, intention of the defendant may be gathered from his
attitude to avoid to appear before the Court in the execution proceeding
shows that defendant want to defeat the decree.
5 So far as engaging the advocate Mr. Pusphraj Singh after
the service of writ of summons is concerned, there is nothing on record
to show that he had engaged an advocate Mr. Pusphraj Singh. He could
have filed the affidavit of concerned advocate, if such advocate has not
acted upon as per the instructions of the defendant. It was incumbent
on the defendant to take action against such advocate, but no proof of
any such action, therefore, it is doubtful, whether he has engaged any
advocate.
6 Defendant has admitted the transaction in question, the
invoices raised by the plaintiff and claiming that the objection raised
regarding calculation, but no prima facie proof on record that he had
raised such objection. Defendant also admitted issuance of cheque, but
claiming that it was blank cheque for security purpose and misused by
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..5.. Notice of Motion No.4054/2019
the plaintiff. There is no proof that as and when he came to know about
the use of cheque he has taken action against plaintiff. The record
shows that plaintiff has also issued notice to the defendant after the
cheque returned dishonoured and it is served upon him. In case of
misuse of blank cheque, the defendant would have definitely taken
action against plaintiff. The absence of such action, shows that cheque
was issued in repayment of said invoices, which returned dishonoured.
It showed that the plaintiff is entitled to recover the amount under the
cheque and Court has rightly passed the judgment.
7 Upon considering the above discussion, I am of the view
that the defendant has failed to established special reasons for setting
aside ex-parte decree. There is no cogent defence which could be raised
in case the decree is set aside. Hence, I am of the opinion that the notice
of motion taken out by the defendant is devoid of merit. In the result, I
proceed to pass following order :-
ORDER
1. Notice of Motion No.4054 of 2019 in Execution
Application No.285 of 2016, is hereby dismissed.
2. Notice of motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 19/08/2024. Court Room No.84
Dictated on : 19/08/2024.
Transcribed on : 20/08/2024.
Signed by HHJ on : 23/08/2024.
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..6.. Notice of Motion No.4054/2019
“Certified to be true and correct copy of the original signed order”.
26/08/2024
at about 4.00 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 19/08/2024
Order signed by Hon'ble Judge on : 23/08/2024
Order uploaded on : 26/08/2024
at about 4.00 p.m.
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