Interim Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 818/2020 in S.J. No. 270/19 in 1 Order.
Comm. Suit No. 708/21.
MHCC010022442020
Presented on : 21-02-2020
Registered on : 21-02-2020
Decided on : 18-02-2022
Duration : 1 years, 11 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 818 OF 2020
IN
SUMMONS FOR JUDGMENT NO. 270 OF 2019
IN
COMMERCIAL SUIT NO. 708 OF 2021
(ORIGINAL SUMMARY SUIT NO. 784 OF 2018)
Jindal Saw Ltd. ...Applicant
(Org. Defendant)
IN THE MATTER BETWEEN
Trans Asian Shipping Services Pvt. Ltd. ...Plaintiff
Versus
Jindal Saw Ltd. ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 18th FEBRUARY, 2022.
Shri Anupam Surve, Advocate for the defendant.
Shri Kunal Vaishnav, Advocate for the plaintiff.
-- 1 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 2 Order.
Comm. Suit No. 708/21.
ORDER
1. The defendant has taken out present notice of motion for
setting aside the order dated 31/07/2019 granting leave to register
Summons for Judgment filed by the plaintiff. Perused notice of motion
and affidavit in reply. I have gone through the suit proceeding. Heard
learned counsel Shri Anupam Surve for the defendant and learned
counsel Shri Kunal Vaishnav for the plaintiff.
2. It is contention of the defendant that the plaintiff had taken
out the Summons for Judgment, affirmed on 31/07/2019 and
registered around 23/11/2019 after the period of more than one year
from the date of filing of the suit. It is registered as Summons for
Judgment No. 270/2019. The defendant has relied upon Rule 119(4) of
the Bombay City Civil And Sessions Court Rules, 1948 (for short, 'the
Rules') for the purpose of asserting the circumstances warranting
dismissal of the suit for failure of the plaintiff to apply for decree within
six months after filing of the plaint.
3. The plaintiff opposed notice of motion by raising following
grounds in affidavit in reply :
This Court has no authority / jurisdiction to set aside its own
order in absence of any specific provision in the CPC. Leave to register
summons for judgment is a mere procedural / administrative order
which upholds the inherent right of the plaintiff in order to expeditious
prosecution of the summary suit. Procedural order is not appealable
under the CPC or any other provision of law. The defendant has relied
upon Rule 119(4) of the Rules to justify the delay in filing his reply /
-- 2 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 3 Order.
Comm. Suit No. 708/21.
leave to defend under Order XXXVII Rule 3(5) of the CPC. The
defendant acknowledged receipt of summons for judgment on
31/07/2019. It tantamounts that the defendant was conscious that the
limitation of ten days to file leave to defend would commence from
31/07/2019. Even then, the defendant failed to file reply before expiry
of ten days i.e. 09/08/2019. The defendant has taken out Notice of
Motion after 226 days on 13/03/2020 without explaining inordinate
delay. The defendant is negligent in adhering to the provisions of the
law. The plaintiff further explained that the defendant was served with
summons in August 2018 and he appeared before the Court on
26/09/2018. When summons for judgment was tendered, copy of the
same was served upon the advocate for the defendant. As the
defendant failed and neglected to file reply / leave to defend within
stipulated period, no reply order was passed against the defendant on
13/01/2020 and matter was fixed for summons for judgment hearing.
Registered summons for judgment was presented to the Court on
23/11/2019. By pointing out these developments in the matter, the
plaintiff blamed the defendant for filing present notice of motion
maliciously and prayed for dismissal of the same with exemplary costs.
4. Learned counsel Shri Anupam Surve for the defendant
reiterated the contents in affidavit in support and placed reliance upon
observations of Hon'ble Bombay High Court in case of SKY Shipping
and Anr. V/s. Vodafone India Limited 2016 SCC OnLine Bom 3580.
He referred paras 2, 6, 11 to 16 of this citation and submitted that the
plaintiff has to satisfy the Court the reasons preventing him from taking
out the Summons for Judgment within six months from filing of the
-- 3 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 4 Order.
Comm. Suit No. 708/21.
suit. The Court has to exercise the judicial discretion after recording
satisfaction for condoning the delay in taking out summons for
judgment beyond six months period. He also read out para 18 of this
citation. After referring this citation, he further submitted that the
Court has to go back to the stage of presentation of summons for
judgment and record satisfaction for condoning the delay for allowing
registration of summons for judgment. If the Court is not satisfied with
grounds to condone the delay, the Court may dismiss the proceeding.
By making all these submissions, he prayed that notice of motion may
be made absolute.
5. Learned counsel Shri Kunal Vaishnav for the plaintiff
mentioned details in affidavit in reply in the course of arguments. He
also referred copies of roznamas annexed thereto. He submitted that
the defendant appeared in the suit on 26/09/2018 and the matter was
adjourned from time to time. The defendant did not raise objection
with regard to noncompliance of Rule 119 of the Rules. When the
order under challenge came to be passed on 31/07/2019, advocate for
the defendant was present in the Court and he received the copy of
summons for judgment. The defendant attempted to justify delay in
filing leave to defend in Summons for Judgment No. 270/2019 on the
ground of nonservice of registered summons for judgment. No reply
order in respect of Summons for Judgment No. 270/2019 passed on
13/01/2020 is challenged in Notice of Motion No. 1020/2020 by the
defendant. He further submitted that the defendant participated in the
proceeding without raising any objection to the order granting leave to
register summons for judgment. The defendant has not explained
-- 4 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 5 Order.
Comm. Suit No. 708/21.
second prayer regarding delay in filing notice of motion. If delay is not
explained satisfactorily, occasion to consider the first prayer does not
arise. He prayed for rejection of the notice of motion.
6. In the light of above rival contentions, it is necessary to
take note of developments in the matter. The plaintiff has lodged the
suit on 11/06/2018 and it was registered as a Summary Suit No.
784/2018. Then, Adv. Priyanka Pole for the defendant appeared and
filed vakalatnama on 05/09/2018. The plaintiff filed Summons for
Judgment on 31/07/2019 and the Court had granted leave to register
the same. Advocate for the defendant received copy of draft summons
for judgment on 31/07/2019. Registered Summons for Judgment No.
270/2019 was placed on record on 23/11/2019. The defendant has
taken objection to the order granting leave to register summons for
judgment passed in roznama dated 31/07/2019 and prayed for setting
aside the said order in the present notice of motion.
7. While pressing this relief, he has mainly relied upon
observations of Hon'ble Bombay High Court in SKY Shipping's case
(referred above) in which Hon'ble Bombay High Court had insisted
upon satisfaction of the Court for condoning the delay in taking out
summons for judgment beyond six months of filing of the suit in view of
Rule 119(4) of the Rules. If factual aspect in the said citation is
considered, it is clear that the defendants had appeared in the said
matter and they were served with copy of draft summons for judgment,
but the defendants were not present on the date of granting leave to
register summons for judgment. Hon'ble Bombay High Court has
-- 5 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 6 Order.
Comm. Suit No. 708/21.
considered the contingency of absence of the defendants on the date of
taking out of summons for judgment in para 17 of the citation. In the
present case, the defendant was present on the date of presentation of
draft summons for judgment and he had received the copy of the same
on that day. At that time, the defendant did not raise any objection
regarding delay in filing summons for judgment. Therefore, there is
much variance in facts of the present case and facts in the citation.
8. If Order XXXVII of the CPC is read carefully, no specific
time limit is prescribed for service of summons for judgment on the
defendant. It is only stated in Order XXXVII Rule 3(4) of the CPC that if
the defendant enters an appearance, the plaintiff shall thereafter serve
on the defendant a summons for judgment. Similarly, Rule 119(4) of
the Rules permits the Court to set down the suit in the daily cause
board for dismissal before the sitting Judge in chambers, one week
before the date fixed for such dismissal. Then, the suit may be
dismissed on the day fixed for such dismissal either on failure of the
plaintiff to appear or on appearance, his failure to satisfy the Judge
sufficient cause for not proceeding with the suit.
9. In the present matter, no development had taken place as
per Rule 119(4) of the Rules. The suit was not set down in the daily
cause board for dismissal one week before the date fixed for dismissal.
Matter was not kept for dismissal prior to presentation of summons for
judgment. In such circumstances, the plaintiff was not required to
satisfy the court for not proceeding with the suit. The plaintiff did not
face with the contingency asking him to give explanation regarding
-- 6 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 7 Order.
Comm. Suit No. 708/21.
nonprosecution of the suit for want of fixing the matter for dismissal by
the Court. When draft summons for judgment was presented before the
Court, there was no scope for the plaintiff to explain sufficient causes
for nonprosecution of the suit on that date. Even otherwise, dismissal
of the suit is not warranted after filing of summons for judgment.
10. The defendant was present in the Court on 31/07/2019
when impugned order came to be passed. Thereafter, the defendant
filed the present notice of motion on 15/02/2020 after about six and
half months' period from the date of impugned order. While moving
present notice of motion, the defendant has not referred the relevant
provision as per which the said order can be set aside. In Order XXXVII
of the CPC, there is no such provision. The defendant did not explain
the delay in seeking the relief of setting aside the order dated
31/07/2019. For all above reasons, present notice of motion is not
maintainable and it is liable to be dismissed. Hence, I pass the
following order :
ORDER
1. Notice of Motion No. 818/2020 is dismissed.
2. The proceeding of N/m No. 818/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 18/02/2022. Mumbai.
1. Dictated online on : 18/02/2022.
2. Signed on : 18/02/2022.
3. Delivered to Certified :
Copy Section on
-- 7 of 8 --
N/m No. 818/2020 in S.J. No. 270/19 in 8 Order.
Comm. Suit No. 708/21.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/02/2022. 5.16 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 18/02/2022.
Judgment/Order signed by P.O. on 18/02/2022.
Judgment/Order uploaded on 18/02/2022.
-- 8 of 8 --