Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010124122019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4548 OF 2019
IN
SUMMARY SUIT NO.944 OF 2019
Ms. Pooja Ashok Jadhav ] … Plaintiff
V/s
1. Vignesh Ramchandra Nair & Ors ] ... Defendants
Appearances :-
Ms. Pooja Jadhav, Ld. Adv. for plaintiff.
Mr. M.A. Attar, Ld. Adv. for defendant Nos.2 and 3.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 9th March, 2021
ORAL ORDER
1. Defendant No.2 took out this Notice of Motion for
condonation of delay in filing appearance, and/or to take leave to
defend the suit.
MHCC010124122019
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of plaintiff.
3. Heard Learned Advocate Ms. Pooja Jadhav for plaintiff and
Learned Advocate Mr. M. A. Attar for defendant Nos.2 and 3.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether delay in filing appearance of the
defendants can be condoned?
In the affirmative.
2. Whether defendants can be permitted to
appear before the Court ?
In the affirmative.
3 Whether permission can be granted to
take leave to defend the suit ?
Does not arise.
4 What Order ? Notice of motion is
partly allowed as per
final order.
REASONS
As to point Nos.1 to 4.
5. In brief, it is contention of the defendant No.2 that writ of
summons are served upon defendant No.2 and defendant No.3 on
04.11.2019. Both the defendants are not conversant with the facts of
the documents. They acknowledged Advocate. Due to lack of
knowledge to appear before the Court within 10 days from the date of
writ of summons they could not appear within 10 days before the Court.
Therefore, Notice of Motion be allowed. Delay be condoned.
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6. In brief, it is contention of plaintiff that this Notice of
Motion is not maintainable. Defendants are acting in collusion and
connivance with each other. They are trying to avoid to pay the
professional fees of an Advocate. Defendant Nos.2 and 3 willfully failed
and neglected to disclose the whereabout of the defendant No.1. Notice
of Motion be dismissed. Defendants have not made out sufficient cause
to condone the delay.
7. Perused plaint. Plaintiff is a practising Advocate. She
submitted that there is no sufficient reason to condone the delay.
Hence, Notice of Motion be dismissed.
8. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant. As per Rule 2 of
Order 37 the defendant may at any time within ten days from such
service enter an appearance either in person or by pleader and he shall
file in Court an address for services of Notice on him.
9. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
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10. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
11. As per the first proviso of the said Sub Rule 5 leave to
defend shall not be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he had a substantial
defence to raise or that the defence intended to be put up by the
defendant is frivolous or vexatious.
12. In view of provisions of Order 37 Rule 3 Sub Rule 1 there is
delay in entering appearance of the defendant. Considering the
grounds for delay, I am of the opinion that the delay can be condoned
and defendant can be permitted to enter his appearance.
13. In view of Order 37 Rule 3 Sub Rule 4 summons for
Judgment is not taken out by the plaintiff therefore, at this stage
question doesn't arise to think over about filing leave to defend by the
defendants. Therefore, Notice of Motion can be partly allowed. Hence,
I record my findings to point No.1 and 2 in the affirmative and point
No.3 does not arise and Notice of Motion partly allowed as per final
order. Hence, following order:
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ORDER
Notice of Motion no. 4548 of 2019 in Summary Suit no. 944 of 2019 is
partly allowed as under-
1. Delay in filing appearance of defendant no. 2 and 3 is condoned.
2. Defendant no.2 and 3 are allowed to enter their appearance.
3. Order is dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 09/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 09/03/2021
Transcribed on : 15/03/2021
Checked on : 16/03/2021
Signed on : 16/03/2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.03.2021 at 05.25 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 09.03.2021
Judgment/order signed by P.O. on 16.03.2021
Judgment/order uploaded on 16.03.2021
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