Final Order 1

Order Details: Notice of Motion
Pdf Text: NM NO. 4081/19 SUIT 1336/2015 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4081 of 2019
IN
EXCECUTION APPLICATION NO.106 OF 2019
SUMMARY SUIT NO.1336 OF 2015
(CNR.NO.MHCC010112022019)
Nagurao Malku Gadge …. Plaintiff
Versus
Sayyad Esaq Sayyad …. Defendant
And
Mumbai Municipal Corporation ...Respondent
Appearances:
Advocate Mr.Rajesh Patil for the Plaintiff
Advocate Ms.Pawar for the Defendant.
Coram : HIS HONOUR JUDGE DEEPAK L. BHAGWAT
DATE : 3RD DECEMBER 2019 (C. R. NO. 28)
ORDER
1. Read the Notice of motion and reply.
2. Heard Ld. advocates on behalf of both the parties.
3. It appears that summary suit No.1336/2015 by judgment and
decree dated 25/02/2016 was exparte decreed in favour of the
plaintiff. The plaintiff taken out execution application bearing
No.106/2019 in course of same warrant for attachment of salary of the
defendant was issued which was intimated to the defendant's office on
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20/06/2019. Thereupon, the defendant taken out present notice of
motion to condone the delay and set aside exparte decree dated
25/02/2016 as passed in suit No.1336/2015.
4. The contention of the defendant is that on the date of service of
summons he was not residing at the address given in the plaint. The
summons does not bear his signature. Since 2015, he is residing at flat
No.7, room No.688, Bharat Nagar, Bandra and not on the address
mentioned in the plaint. Thus, summons has not been served on him.
Therefore, he requested to allow the notice of motion.
5. On the other hand, the plaintiff resisted the notice of motion.
6. The Ld. Advocate on behalf of the defendant argued that the
defendant was residing at different address from the address mentioned
in the plaint. As such, the summons served on the residential address of
the defendant is not proper, rather no summons has been served on the
defendant. Therefore, he requested to allow the notice of motion and
set aside the expart decree.
7. On the other hand, Ld. Advocate on behalf of the plaintiff argued
that summons has been properly served on the defendant. He pointed
out that summons has not been served at the residential address but at
the office address of the defendant. Therefore, he requested to reject the
notice of motion.
8. The plaint mentions two addresses of the defendant, one is
residential address at room No.17, Bandra (E), Mumbai and second is
official address at BMC office, LWard, Kurla, Mumbai. Thus, it is clear
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that the plaint contains both the addresses. Having perused the writ of
summons along with bailiff report, it appears that the summons was
served on the defendant on 28/01/2016. The Bailiff report states that
the summons was served on the defendant at about 11.00 a.m. at his
work place/place of gain at BMC office,''L'' ward Consy department,
Kurla (W), Mumbai. Signature of the defendant has also been obtained
as acknowledgment of the summons. Copy of summons as well as the
plaint was delivered by the bailiff to the defendant. No reason to
disbelieve the same bailiff report for the bare contention of the
defendant that it does not contains his signature. Basically, the
defendant has come with contention that the summons was served on
his residential address where he is not residing; but the record is
contrary to the said contention showing that the summons has been
served not on the residential address but on the office address of the
defendant which is not disputed. Having regard to these circumstances,
the contention of the defendant that summons was not served on him is
not acceptable. Resultantly, the notice of motion has to be rejected.
Hence, order as follows is passed.
Order
The notice of motion No.4081/2019 stands rejected.
(Deepak L. Bhagwat)
AdHoc Judge
City Civil Court, Gr. Mumbai
Date: 03.12.2019
Dictated on : 03.12.2019
Transcribed on : 09.12.2019
Signed on : 10/12/2019
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NM NO. 4081/19 SUIT 1336/2015 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19/12/2019 at 5.35p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.Deepak L. Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 03/12/2019
Judgment/Order signed by P.O. on 10/12/2019
Judgment/Order uploaded on 19/12/2019
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