Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3191/21 in Comm. Suit No. 416/2020. 1 Order.
MHCC010102872021
Presented on : 09-12-2021
Registered on : 09-12-2021
Decided on : 22-03-2022
Duration : 0 years, 3 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3191 OF 2021
IN
COMMERCIAL SUIT NO. 416 OF 2020
The Jammu and Kashmir Bank Ltd. ...Plaintiff
Versus
Poonam Rajeev Pathak w/o.
Mr. Rajeev Madhav Pathak ...Defendant No.1
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 22nd MARCH, 2022.
Shri Aditya Sharma, Advocate for Defendant No.1.
Shri V.K.Sharma, Advocate for the plaintiff.
ORDER
1. Defendant no.1 has filed present notice of motion for
setting aside exparte order dated 01/10/2021. Perused notice of
motion and affidavit in reply. I have gone through the suit proceeding.
Heard learned counsel Shri Aditya Sharma for defendant no.1 and
learned counsel Shri V.K.Sharma for the plaintiff.
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N/m No. 3191/21 in Comm. Suit No. 416/2020. 2 Order.
2. On perusal of record, it appears that writ of summons was
served upon the defendants on 30/03/2021 as per three
acknowledgements annexed with affidavit of service (Exh.2). The
plaintiff filed affidavit of service (Exh.2) on 01/10/2021 and the matter
was posted for exparte order on 26/10/2021. On 26/10/2021, ex
parte order came to be passed against the defendants and the plaintiff
filed evidence affidavit (Exh.3) and list of documents (Exh.4) on that
day itself. The plaintiff also closed his evidence by filing pursis
(Exh.19) on 26/10/2021. In short, all material developments in the
matter took place on 26/10/2021.
3. Meanwhile, Adv. Siddharth Jaiswal appeared for defendant
no.1 and filed vakalatnama (Exh.20) on 18/11/2021. It is apparent
from contents in the notice of motion and noting in roznama based
upon contents in the notice of motion that date of exparte order is
wrongly mentioned as 01/10/2021. Learned counsel Shri V.K.Sharma
has given much stress on this error. On the contrary, learned counsel
Shri Aditya Sharma submitted that it is a typing mistake and exparte
order passed on 26/10/2021 may be set aside. Considering apparent
typing error perculated in roznama proceeding due to mistake in the
notice of motion, it can be considered liberally. Basic prayer of
defendant no.1 seeking the relief of setting aside exparte order is
required to be considered on merit.
4. It is specific contention of defendant no.1 that her husband
Rajeev (defendant no.2) died on 26/10/2021 and her son Yashmaan
(defendant no.3) is in Canada. She further pointed out the aspect of
service of writ of summons during Covid19 pandemic period on
30/03/2021. In addition to it, the plaintiff has filed one another suit
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N/m No. 3191/21 in Comm. Suit No. 416/2020. 3 Order.
against present defendants having Commercial Suit No. 417/2020
which is allotted to other court. Defendant no.1 has taken the ground
of misconception of facts by her advocate Shivamsinh Deshmukh who
was bonafidely attending Commercial Suit No. 417/2020. In the light
of all above discussion, defendant no.1 has shown sufficient reasons
preventing her from attending the present suit proceedings. At the
same time, she has avoided to place on record death certificate of her
late husband. Though contents in affidavit in support can be
considered, reasonable cost is liable to be imposed while allowing
present notice of motion. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 3191/2021 is made absolute in terms
of prayer clause (a) with modification as to the date of ex
parte order subject to cost of Rs.5,000/ (Rupees Five
Thousand Only) payable to the plaintiff or his learned
counsel.
2. Exparte order dated 26/10/2021 is set aside as against
defendant no.1.
3. The proceeding of N/m No. 3191/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 22/03/2022. Mumbai.
1. Dictated online on : 22/03/2022.
2. Signed on : 22/03/2022.
3. Delivered to Certified :
Copy Section on
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N/m No. 3191/21 in Comm. Suit No. 416/2020. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/03/2022. 5.30 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 22/03/2022.
Judgment/Order signed by P.O. on 22/03/2022.
Judgment/Order uploaded on 22/03/2022.
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