Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4188 OF 2019
IN
SUMMARY SUIT NO.1082 OF 2017
Laherchand B. Shah ] … Plaintiff
V/s.
1. Mewar Hi Tech Engineering Ltd., ]
& Ors. ] ... Defendants
Appearances :
Mr. Lalit Jain, Ld. Adv. for plaintiff.
Ms. Bhavna Jain, Ld. Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 29th November, 2019
ORAL ORDER
1. Defendant No.5 Chatrsing Harisingh Rathore, Director of
defendant No.1 Company filed this Notice of Motion to set aside under
Order XXXVII Rule 4 of CPC decree passed in the said Summary Suit
and to set aside Execution Application filed on the basis of said decree.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of plaintiff and written notes of arguments filed by
defendants.
MHCC01-011475-2019
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3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether decree dated 6.12.2018 passed
in the said Summary Suit can be set
aside?
In the affirmative.
2. Whether Execution Application filed on
the basis of said Decree can be set aside ?
In the affirmative.
3. What Order ? As per final order.
REASONS
As to point Nos.1 to 3.
4. Heard both Learned advocates.
5. In brief, it is the contention of defendant No.5 who is
Director of defendant No.1 Company that defendant No.1 is Company
and defendant No.2 to 7 are Directors of the defendant No.1 Company.
He is one of the director of the defendant No.1 Company and is duly
authorized to represent defendant No.1 by resolution of the Company.
6. The plaintiff filed the said Summary Suit for recovery of an
amount of Rs.7,52,037/ with further interest @ 18% p.a. from the date
of filing of the suit till its realization.
7. Plaintiff had not disclosed true and material facts in the
said suit. The matter is already settled between the parties in the year
2017. Plaintiff received the valuable consideration of Rs.2,79,994/
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therefore, plaintiff has no cause of action to file the said Summary Suit.
There was prolonged dispute between the parties. The business
transaction took place in the year 2015. Plaintiff supplied duplicate
goods. Various proceedings were pending between the parties including
Criminal Proceedings in Mumbai and Udaipur. The proceeding in the
Metropolitan Magistrate Court, 17th Court at Mazgaon located at
Sewree was settled by plaintiff by receiving amount of Rs.2,79, 994/
from the defendants in the year 2017.
8. Summons of the said Summary Suit was never served upon
the defendants. Defendants had no information about the said suit.
Plaintiff has played fraud upon the defendants by continuing the said
suit even after the receipt of compromised amount of Rs.2,79,994/ in
the year 2017 itself. Defendant No.5 came to know about the decree of
the said suit when he received show cause notice in the execution
proceedings. Defendants applied for certified copy of the execution
proceeding on 16.10.2019. The certified copy was ready and received
on 4.11.2019 therefore, there is no delay to file this Notice of Motion. If
there is delay to file this Notice of Motion then delay be condoned and
the Notice of Motion be allowed.
9. Plaintiff filed reply and opposed the Notice of Motion. In
brief it is contention of plaintiff that Notice of Motion is false and
frivolous. Writ of summons alongwith copy of plaint was duly served
upon the defendants. There is no sufficient cause or ground to set aside
the decree. The Notice of Motion is barred by law of limitation.
Defendant was very well aware about the filing of the said suit.
Warrant of attachment of the execution proceeding was served upon the
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defendants on 14.10.2019. Defendant No.5 was present and requested
for some time to pay the entire decreetal amount. It shows that
defendants were aware about the passing of the exparte decree. The
defendant has taken out this Notice of Motion on 8.11.2019. All the
other adverse contentions are denied. Hence Notice of Motion be
dismissed.
10. Learned Advocate appearing for defendant No.5 has relied
upon Judgment of the Hon'ble Rajasthan High Court in the case of
Mukesh Kumar Vs. Bhopal Singh delivered on 9th September, 2004.
I have gone through the citation. In the cited case application was filed
to set aside decree under Order 9 Rule 13 of the C.P.C. The Trial Court
held that the application for setting aside decree was filed under Order
9 Rule 13 of the C.P.C. after the period of 30 days and no application
under Section 5 of the Limitation Act filed and therefore, Trial Court
dismissed the said application of defendant holding that the said
application for restoration to set aside the exparte decree is barred by
time. The Hon'ble High Court held in the said Judgment that if
application under Order 9 Rule 13 is filed to set aside the exparte
decree which is passed in Summary Suit then such application can be
treated under Order 37 Rule 4 of the C.P.C. In the cited case affidavit
provided under Sub Rule 4 of Rule 3 of Order 37 of CPC was not
followed therefore, it is held that non filing of such affidavit is one of
the special circumstances to set aside decree under Order 37 Rule 4 of
C.P.C.
11. Perused Article 123 of the Limitation Act. It provides 30
days time to set aside a decree passed exparte or to rehear an appeal
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decreed or heard exparte from the date of decree or where the summons
or notice was not duly served, when the applicant had knowledge of the
decree. Therefore, as per the said Article 123 application can be filed
within 30 days to set aside exparte decree, from the date of decree or
where the summons or notice was not duly served, when the applicant had
knowledge of the decree.
12. Perused Order 37 Rule 4 of the C.P.C. It provides that after
the decree, the Court may, under special circumstances, set aside the
decree, and if necessary stay or set aside execution, and may give leave to
the defendant to appear to the summons and to defend the suit, if it seems
reasonable to the Court so to do, and on such terms as the Court thinks fit.
13. The Learned Advocate appearing for the plaintiff filed copy
of affidavit of service dated 3.4.2018 by filing list of documents dated
22.11.2019. It is mentioned therein that copy of the summons sent at
the address was received by defendant No.1, 3 and 5 on 6.11.2017 i.e.
R.A. No.941, 943 and 945 respectively. It is also mentioned therein
that copy of summons sent to the defendant No.4, 6 and 7 i.e. RL
No.944, 946 and 947 respectively came back with the remark left
without address. Plaintiff did not receive acknowledgement card or
return pocket of R.L. No.942 i.e. the copy of summons sent to defendant
No.2. I have gone through the copies of R.L. No.941, 943 and 945
which are filed with the said list of documents dated 22.11.2019. I do
not find official signature of defendant No.1 on the acknowledgement
bearing R.L. No.941 as receive. I have also perused R.L.945. It has one
signature, but it appears from the record that the concerned postman is
not examined before the Court to prove that said R.L. 941 and 945 are
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served to defendant No.1 and 5 respectively.
14. It is contention of the Learned advocate appearing for
plaintiff that when the Bailiff had been to defendants to serve notice of
Execution application and at that time defendant No.5 Chatrsing
Harisingh Rathore on 14.10.2019 stated to the bailiff that he will
deposit decreetal amount in the Court and sought time to deposit
decreetal amount till 15.10.2019. He further submitted that due to
seeking time by the defendant No.5 Chatrsing Rathore as per the bailiff
report dated 14.10.2019 which shows that defendant No.5 was well
aware about the said suit and decree. I am of the considered view that I
do not agree with the submission of the Learned Counsel that on
14.10.2015 defendant No.5 was well aware about the said suit and
decree. It is one of the contention of defendants that the suit is filed
back behind the defendant even after the settlement between the
parties and thereby plaintiff had committed fraud upon the Court. I am
of the opinion that defendant has to prove said contention by leading
evidence, if this Notice of Motion is allowed. Therefore, said point
cannot be considered at this moment that the plaintiff has committed
fraud upon the Court by filing the present suit.
15. According to the plaintiff warrant of attachment served on
the defendant on 14.10.2019. This Notice of Motion is filed on
8.11.2019. Therefore, as per Article 123 of the Limitation Act this
Notice of Motion is filed within the law of limitation.
16. After going through the facts and circumstances, I am of
the considered view that there is no proper and valid service to
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defendants of the said suit, therefore, this is one of the special
circumstances to set aside the said decree under Order 37 Rule 4 of the
C.P.C.
17. Due to setting aside the said decree, the said execution
application does not survive. Hence, I record my findings on point
Nos.1 and 2 in the affirmative and point No.3 the Notice of Motion is
made absolute as per final order. Hence following order:
ORDER
Notice of Motion No.4188 of 2019 is made absolute as under:
1. The decree dtd. 06.12.2018 passed in the said Summary Suit
No.1082/17 is hereby set aside.
2. Execution Application filed on the basis of said decree is also set
aside.
3. The said suit is restored at the stage of appearance of the
defendants.
4. Both parties are directed to appear before the Court in the said
Summary Suit No.1082/17 on 27.01.2020 at 11.00 am.
5. No order as to costs.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 29/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 29/11/2019.
Transcribed on : 03/12/2019.
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The H.H.J. is on
training at MJA from
01.12.2019 to 14.12.2019.
Checked on : 18/12/2019
Signed on : 18/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.12.19 at 12.25 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 29.11.19
Judgment/order signed by P.O. on 18.12.19
Judgment/order uploaded on 20.12.19
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