Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 48862019 IN SUIT 36402012
MHCC010133342019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4886 OF 2019
IN
SUIT NO. 3640 OF 2012
Dr. S.K. Mukhopadhyay ] ...Applicant (Org.
Defendant No.2)
And
IN THE MATTER OF
Maruti Nandan Engineering Services ] ...Plaintiff.
Versus
M/s. Macrotech India & Others ]…Defendants.
Appearance:
Ld Advocate Shri. Jitendra Mishra for the plaintiff.
Ld Advocate Shri. Yogesh Nadkarni for defendants.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 8/4/2022
ORAL ORDER
1) Defendant No.2 has taken out this Notice of Motion for
recalling/setting aside exparte proceed order against him dtd.4/6/18
and for condoning the delay in taking out the present notice of motion
for setting aside the ex parte order dtd.4/6/18.
2) Perused the notice of motion, affidavit in support of
notice of motion, affidavit in reply of plaintiff, affidavit in Sur
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Rejoinder of the plaintiff, plaint and documents annexed with plaint
and record. Heard Ld Advocate for defendant No.2 and Ld Advocate
for plaintiff. Court has gone through the synopsis of submission on
behalf of defendant No.2.
3) Ld Advocate for defendant No.2 argued that in the first
week of October 2019 for the first time defendant No.2 got knowledge
about filing of the present suit and from the online status report of the
present suit he came to know about the ex parte proceed order
dtd.4/6/18. From the court record it appears that defendant No.2 was
served with the writ of summons by substituted service by paper
publication in the newspaper. However, plaintiff had not read the said
newspaper and therefore, he had no idea about the present suit and
the present order. There is no willful delay for his appearance in the
present suit. There is good cause for his previous non appearance in
the present matter and for condonation of delay in taking out present
notice of motion. In order to give fair opportunity to the defendant
No.2 it is necessary to set aside the ex parte proceed order by
condoning the delay if any in taking out present notice of motion. No
prejudice will be caused to the plaintiff. Therefore, Ld Advocate for
defendant No.2 submitted that notice of motion be made absolute.
4) On the other hand Ld Advocate for plaintiff argued that
the present suit was filed originally in the Hon'ble High Court in the
year 2012. Defendant No.2 is having idea about the interim order
passed therein. Defendant No.2 has not demonstrated any good cause
for his previous non appearance and any just cause for condonation of
delay. Therefore, Ld Advocate for plaintiff submitted that notice of
motion be dismissed.
5) From the perusal of record/roznama it appears that on
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4/6/18 court observed that defendant No.2 is duly served by paper
publication, but failed to appear and therefore, court passed ex parte
order against defendant No.2. Admittedly, in the present matter writ
of summons was served by substituted service by way of paper
publication and defendant No.2 came with the case that he had not
read the said paper publication. No material is brought on record by
the plaintiff so as to disbelieve the cause shown by defendant No.2 for
his previous non appearance and for delay in taking out present notice
of motion. Therefore, from the perusal of affidavit in support of notice
of motion it appears that the defendant No.2 has demonstrated the
valid and good cause for his non appearance earlier. It appears that
present notice of motion is taken out by defendant No.2 immediately
after getting knowledge about the pendency of the present suit and
about the impugned ex parte order. As such there is no any inordinate
delay in taking out the present notice of motion and the delay does
not appear intentional. As such there appear good cause for non
appearance of defendant No.2 earlier and there appear sufficient
cause for condonation of delay in taking out the present notice of
motion. Moreover, considering the nature of suit in order to give fair
opportunity to the defendant No.2 to contest the suit on merit in the
interest of justice it is necessary to set aside ex parte proceed order.
Delay and inconvenience caused to the plaintiff can be compensated
by awarding cost. Therefore, no prejudice will be caused to the
plaintiff if the notice of motion is made absolute.
6) Considering the above matter on record and above
discussion court hold that defendant No.2 succeeded to satisfactorily
demonstrate the good valid reason for his previous non appearance
and sufficient cause for delay in filing present notice of motion.
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Therefore, in order to give fair opportunity of hearing to the defendant
No.2 in the interest of justice notice of motion deserves to be made
absolute. Hence, court proceeds to pass the following order:
ORDER
1) Notice of motion No.4886 of 2019 is made absolute subject to
condition of payment of cost of Rs.3000/ (Rs. Three Thousand only)
by the defendant No.2 to the plaintiff on or before next date.
2) Notice of Motion No.4886 of 2019 is disposed of accordingly.
Date : 8/4/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 8/4/2022.
Checked on :8/4/2022.
Signed on :18/4/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/4/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
8/4/2022
JUDGMENT/ORDER signed by P.O.
on
18/4/2022
JUDGMENT/ORDER uploaded on 19/4/2022
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