Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 21 in
Comm. Suit 5302021
MHCC010112572019
IN THE CITY CIVIL COURT AT MAZGAON MUMBAI.
(Court Room No.32)
ORDER BELOW EXH.21
IN
COMMERCIAL SUIT No.530 OF 2021
Suman Shantinath Magdum & Ors. …PLAINTIFFS
VERSUS
Netaji Narobe Omase & Ors. …DEFENDANTS
Shri.Revankar, learned advocate for plaintiff
Shri.Redekar, learned advocate for defendant Nos.1,2,3,5 and 6.
CORAM : H.H. J. SHRI VISHAL SADASHIVRAO GAIKE,
COURT ROOM NO.32
O R D E R
(Delivered on 28/02/2024)
1. The present application is filed on behalf of the plaintiff
stating that the defendants No.1 and 2 were served with the writ of
summons through registered post, but the postal acknowledgment or
the postal envelopes have not been received back. The defendants No.1
and 2 are represented by an Advocate and they have been served with
the copy of plaint. Therefore, the service of writ of summons on
defendants No.1 and 2 be dispensed with.
2. The Ld. Advocate for defendants No.1 and 2 has opposed
the application in his hand written say given overleaf the present
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2 OBE 21 in
Comm. Suit 5302021
application. He has stated that the plaintiff be directed to serve the writ
of summons upon the defendants.
3. Heard the parties. Perused the record. The Ld. Advocate
of plaintiff submitted that as the defendants No.1 and 2 are represented
by an advocate since long and they are served with the copy of plaint,
hence, the service of writ of summons upon them be dispensed with. On
the contrary, the Ld. Advocate of defendants No.1 and 2 contended that
the writ of summons were never served upon the defendants, therefore,
the limitation to file their written statements has not yet commenced.
He relied on the judgment of Hon’ble Bombay High Court in the matter
of Metro Ortem Ltd., though its authorized representative Vs
Maharashtra State Road Transport Corporation reported 2022 SCC
Online Bom 7238.
4. That, admittedly the service proof/affidavit regarding
service of writ of summons upon the defendants No.1 and 2 has not
been filed on record by the plaintiff. The defendants No.1 and 2 are
represented by an advocate, but till today they have not filed their
written statement. As per the provision to Order VIII, Rule1 of Code
of Civil Procedure(as amended for The Commercial Courts Act, 2015),
the defendant has to file his written statement within 30 days from the
date of service of writ of summons and not later than 120 days if
allowed by the court for reasons to be recorded.
5. That, in the matter of Metro Ortem(Supra) The Hon’ble
Bombay High Court had held in paragraph No.22 that, “The defendant
is not under obligation to file the written statement unless the writ of
summons is served upon him”. In the said matter no writ of summons
as prescribed under the provisions of Code of Civil Procedure was ever
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3 OBE 21 in
Comm. Suit 5302021
served upon the defendant and he was able to show that the writ of
summons was not duly served upon him, though he had received the
notice of plaintiff’s advocate along with copy of plaint and Notice of
Motion.
6. In the present matter, according to the defendants No.1
and 2, the writ of summons is not yet served upon them, though their
advocate has appeared on record. There is no proof of service of writ of
summons upon the said defendants. Therefore, in view of the judgment
of Hon’ble Bombay High Court in the matter of Metro Ortem(Supra),
the mandatory requirement as per the Code of Civil Procedure for
service of writ of summons cannot be dispensed with. Consequently, I
proceed to pass the following order:
ORDER
1. The application at Exh21 is hereby rejected.
2. The plaintiff is directed to take steps for service of writ of
summons upon the defendant Nos.1 and 2.
3. The application at Exh21 is disposed off accordingly.
( VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32,
Date :28/02/2024. CITY CIVIL COURT AT MAZGAON,
MUMBAI.
Directly typed on Computer on : 28/02/2024.
Printed on : 28/02/2024.
Signed on : 28/02/2024
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4 OBE 21 in
Comm. Suit 5302021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/02/2024 at 4.45 p.m. Mrs. Rupali S. Bhor
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Vishal S. Gaike
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
28/02/2024
JUDGMENT/ORDER signed by
P.O. on
28/02/2024
JUDGMENT/ORDER uploaded on 28/02/2024
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