Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2296 OF 2019
(CNR NO.MH-CC01-013344-2019)
IN
NOTICE OF MOTION NO.3398 OF 2019
(CNR NO.MHCC01-009290-2019)
IN
SUMMARY SUIT NO. 1081 OF 2018
INSTA CAPITAL PVT. LTD. ]
A Company registered under the ]
Companies Act, 1956, carrying on ]
Business at 207, Niranjan, 99, Marine]
Drive, Mumbai 400 002. ]..Plaintiff.
V/s.
1. MR.YOGESH RATNAKAR SHETTY]
Aged about 49 years, Occupation: ]
Business, Proprietor of M/s. Rochere ]
Hospitality. ]
2. MRS. ANUPAMA YOGESH SHETTY]
Aged about 41 years, Occupation: ]
Business, Both residing at 16/B, New ]
Purshottam nagar, S. V. Road, ]
Bandra (West), Mumbai – 400 050. ]..Defendants.
Advocate Ms. Kavita Lalwani for the plaintiff.
Advocate Mr. Rajesh Dubey for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 16th NOVEMBER 2021
ORDER
The Chamber Summons is taken out for permission to carry
out the amendment in the affidavit in support of a notice of motion as
per the schedule annexed.
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2. The Notice of Motion No. 3398 of 2019 is taken out by the
defendant No. 1 for setting aside ex-parte order passed against him on
03/04/2019. It is the case of defendant No. 1 that he was not served
with the writ of summons. However inadvertently in paragraph No. 2,
4 and 10, Summons for Judgement is mentioned in the place of Writ of
Summons.
3. It is further mentioned that in paragraph No. 2, Line 6 of
the affidavit, word ‘plaint’ was required in the place of ‘the writ of
summons’.
4. It is further mentioned that in paragraph No. 4, line 1 of
the affidavit, ‘writ of summons’ is required to be mentioned in the place
of ‘summons for judgement’ in paragraph No. 10, line 4 of the affidavit,
word ‘writ of summons’ is required in the place of ‘summons for
judgement’.
5. It is the case of defendant No. 1 that these errors are the
typographical errors and not intentional. If he is not allowed to correct
the same, then he will suffer irreparable loss.
6. The chamber summons is objected by the plaintiff on the
ground that the notice of motion taken out by the defendant No. 1 is
false and this chamber summons is taken out to misguide the court. The
chamber summons is intended to delete the admission given by the
defendant No. 1. Plaintiff has further stated that the writ of summons
was duly served upon the defendant.
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7. The writ of summons was served upon the defendant on
25/10/2018 and the insolvency notice was served on 06/08/2019. The
defendant No. 1 was in instant contact with his advocate. Therefore,
there is no question of any typographical error in the notice of motion.
For all these reasons, the plaintiff has prayed for dismissal of the
chamber summons.
8. I have gone through the chamber summons and reply
thereto. I have heard both learned advocates at length. I have gone
through the record and proceeding.
9. The Roznama of the matter discloses that after service of
writ of summons upon the defendant No. 1, service affidavit was filed at
Exhibit-5. On the same day i.e. 12/12/2018, plaintiff filed affidavit of
evidence and list of documents and the matter was listed for ex parte
argument on 08/03/2019. This makes it clear that the Summary Suit
No.1081 of 2018 never reached at the stage of summons for judgement.
Therefore, there was no question of service of summons for judgement
upon defendant No. 1.
10. The plaintiff has come up with the case that the writ of
summons was served upon the defendant. Therefore, there is no need
to carry out the amendment in the affidavit. However, in view of
aforesaid discussion, I have come to the conclusion that the amendment
proposed by the defendant No. 1 is of formal nature and correction of
the typographical mistake. The plaintiff was well aware of the fact that
no summons for judgement was taken out by him since the beginning.
Therefore, the proposed amendment will not affect his legal rights at
all. On the other hand, if the amendment is not allowed, there will be
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ambiguity in the chamber summons. It will cause irreparable loss to the
defendant No.1. In the circumstances I am inclined to allow the
amendment. However, the inadvertence shown by the defendant No. 1
makes him liable to pay costs as the hearing of the notice of motion is
delayed due to the negligence of the defendant No. 1. Accordingly, I
proceed to pass following order.
ORDER
1. The Chamber Summons No.2296 of 2019 is
allowed subject to payment of cost of Rs. 1,000/– by
the defendant No. 1 to plaintiff.
2. Plaintiff to carry out the amendment in the
affidavit as prayed for after payment of cost to the
plaintiff.
3. The Chamber Summons No.2296 of 2019 is
disposed off accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 16.11.2021 Gr.Mumbai.
Dictated on: 16.11.2021
Typed on : 17.11.2021
Signed on : 18.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16.11.2021 AT 1.45 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
16/11/2021
Judgment/Order signed by P.O. on 18/11/2021
Judgment/Order uploaded on 20/11/2021
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