Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.4057/2019 1 Summary Suit No.668/19
CNR No. MHCC010111532019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4057 of 2019
IN
SUMMARY SUIT NO. 668 OF 2019
Uttam Galva Steels Ltd. )
A Company incorporated under thereafter )
Provisions of the Companies Act 1956 )
Having its registered office at )
Uttam House, 69, P.D. Mello Road, )
Mumbai – 400 009. )…Plaintiff
Vs.
M/s. Kumuda Creative Engineers Pvt. )
Plot No.D2B, PhaseI, IDA, )
Jeedimatla, Hyderabad – 500 055. )...Defendant
APPEARANCE:
Ld. Adv. Mr. Manmohan Rao for the plaintiff.
Ld. Adv. Mr. Darshit Jain for the defendant.
CORAM : HER HONOUR ADHOC JUDGE
C.P. JAIN (C.R. NO.40)
DATED : 30th NOVEMBER, 2019.
O R D E R
This Notice of Motion is moved by defendant praying to
condone the delay caused in his appearance & to accept his
vakalatnama in Summary Suit No.668/2019.
2. In the affidavit filed in support of notice of motion, it is
averred by defendant that it had shifted its address at D119, PhaseI,
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IDA, Jeedimetla, Hyderabad500 055 in May2012. Defendant has
intimated the Registrar of Companies about the aforesaid change of
address. Plaintiff had approached defendant on its new address for
amicable settlement. Therefore, plaintiff was aware of its new address.
In lieu of settlement defendant had made payments to plaintiff on
different dates from 16.05.2011 to 17.08.2012, which are duly accepted
by plaintiff. Plaintiff however sued defendant on its old address & did
not take pains to get new address if summons was returned. Defendant
did not receive any correspondence except letter dated 09.04.2012. On
21.09.2019, defendant was shocked to receive a copy of plaint.
Defendant rushed to its Advocate in Hyderabad. As matter was old, it
took time for inquiry and collate certain documents where upon
defendant instructed its advocate to take necessary steps. Application
for leave to defend was prepared and sent by defendants on
27.09.2019. Defendant learnt that matter is adjourned on 16.10.2019.
It took time to find advocate based in Mumbai to represent them in the
suit and then sending vakalatnama to their advocate in Mumbai. The
advocate for defendant appeared on 16.10.2019. However, the matter
was adjourned therefore vakalatnama could not be taken on record.
Defendant has good case on merits. Defendant had taken all steps to
defend the suit. Delay caused of 37 days in filing vakalatnama is
bonafide. Therefore, defendant has moved this notice of motion.
3. Plaintiff did not file reply. Ld. advocate for plaintiff orally
denied all averments in notice of motion. He heavily objected on
grounds that defendant have moved chamber summons & notice of
motion. Therefore, for he prayed for dismissal. He relied upon the
observations in the case of :
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1) Mohanlal Manordas Goradia V/s. C.K. Daruwala (1925 SCC
Online Bom 142) in which it is observed that, “discretion to extend
the time vests in chamber Judge in suit moved by plaintiff before
sitting Judge in chambers.”
2) Kishore Smrite V/s. State of Uttar Pradesh (2013) 2 SCC 398.
3) Gurbir Shivdev Singh & others V/s. Naresh Nathulal Pal and
Others 2017 (5) Mh.L.J. 930. Wherein it is observed that, “If party
comes to Court with unclean hands and intend to impede and
prejudice administration of justice, such party must be dealt with
very strongly.”
4. I have given anxious consideration to arguments of both the
sides. Perused the observations in aforesaid citations relied upon by Ld.
advocate for plaintiff. I do not dispute them but then, it is for plaintiff to
show that defendant has come with unclean hands and delaying
administration of justice. It is pertinent to note that though plaintiff is
orally denying & objecting the notice of motion, plaintiff did not take
pains to deny all the averments in notice of motion on oath in writing.
Nothing is tendered on record by plaintiff to doubt the averments in
notice of motion. Unless plaintiff brings on record something to show
that averments in notice of motion are false & defendant has come with
unclean hands, how arguments of Ld. advocate for plaintiff can be
accepted on this point. As the averments in notice of motion are on oath
& their being no rebuttal evidence or circumstance on record to doubt
them the averments in notice of motion needs to be believed.
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5. As regards arguments of Ld. advocate for plaintiff that
defendant should have filed chamber summons & not notice of motion,
it will hardly carry any merits. The observations in Mohanlal
Manordas Goradia are of year 1925. Now all proceedings i.e. chamber
summons or notice of motions are all heard on open dias. The position
as was prevailing in year 1925 is not existing today. The arguments of
Ld. advocate for defendant on this point has substance. Furthermore, if
Rule 43 of City Civil Court rules are taken into account, it nowhere
provides that proceeding moved by defendant should be moved as
chamber summons and not notice of motion. If this rule had specifically
provided, then arguments of Ld. advocate for plaintiff could have been
accepted. As Rule 43 of City Civil Court rules is silent, for aforesaid
discussion, the arguments of Ld. advocate for plaintiff cannot be
accepted on this point also. The observations therefore in all citations
relied upon by Ld. advocate for plaintiff do not help plaintiff in present
case.
6. As discussed above, the averments in notice of motion are
worth believable is concluded. Therefore, defendant needs to be given
opportunity to file his vakalatnama by condoning the delay. If notice of
motion is rejected, it will be defendant who will suffer irreparable loss
as compared to plaintiff. If notice of motion is allowed, plaintiff will not
be prejudiced in any manner. On the contrary, it will help to decide
summary suit no.668/2019 on merits which is in interest of both the
parties. In interest of justice, notice of motion deserves to be allowed.
The inconvenience caused to plaintiff can be compensated by saddling
costs. Therefore, I proceed to pass following order.
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ORDER
1. The Notice of Motion No.4057/2019 is allowed subject to costs of
Rs.750/ (Rs. Seven Hundred Fifty Only) to be paid by defendant
to plaintiff on or before next date.
2. On compliance of clause (1) of this order delay caused in filing
vakalatnama in summary suit no. 668/2019 shall stand condoned
& defendant shall be permitted to file his vakalatnama in
summary suit no.668/2019.
3. The Notice of Motion No. 4057/2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.40)
Date : 30.11.2019 City Civil Court, Gr. Mumbai
Dictated on :30.11.2019
Transcribed on :16.12.2019
Signed on :19.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 24.12.2019, 12.14. pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Shri. U. M. Mudholkar
C.R. No.48
Date of Pronouncement of
JUDGMENT/ORDER
30.11.2019
JUDGMENT/ORDER signed by
P.O. on
19.12.2019
JUDGMENT/ORDER uploaded on 24.12.2019
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