Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010133892019 Presented on 20/12/2019
Registered on 20/12/2019
Decided on 10/07/2024
Duration 04Y: 06M: 21D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 4905 OF 2019
IN
SUMMARY SUIT NO. 424 OF 2018
Vishvanath Mahadev Gosavi ]...Plaintiff
Vs. ]
Sandesh Sakharam Shetye ]...Defendant
Appearance:-
Ld Advocate Bhagyalaxmi R. Racha for the plaintiff.
Ld. Advocate Anil P. Bagwe for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 10/07/2024.
O R D E R
01. This notice of motion is filed by the defendant to condone
delay and to set aside ex-parte decree dated 17/11/2018 passed in
Summary Suit No. 424/2018 and to stay the effect, operation and
implementation of Judgment and Decree dated 17/11/2018.
02. This notice of motion is filed on 20/12/2019. Ld. counsel
for the plaintiff has filed affidavit in reply and objected the notice of
motion.
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No.424/2018
03. It is submitted on behalf of the Ld. counsel for the
defendant that he came to know about the Judgment and Decree passed
in Summary Suit No.424/2018 on 17/11/2018, when he received show
cause notice issued in Execution Application bearing No.03/2019 on
27/08/2019. Thereafter, he received copies of the suit proceedings on
11/12/2019. Thereafter, he came to know that plaintiff had filed suit
against him for recovery of Rs.6,00,000/- along with interest on the
basis of alleged cheque of Rs.6,00,000/- dated 31/10/2017, issued by
defendant towards repayment of alleged loan. It is the contention of
the defendant that he and plaintiff are residents of same village and
since 2013-2014, they were acquainted with each other. Plaintiff works
as a Technician and defendant is doing business of cutlery items.
Plaintiff was doing taxation work for the defendant till 2018. At that
time, plaintiff had provided him loan of Rs.6,00,000/- which was to be
paid with interest at the rate of 15% p.a. within one year. Further,
plaintiff had taken one blank undated cheque bearing No.009675. As
per the defendant, he used to pay installments towards interest and
principal of said loan to the plaintiff through NEFT. However, plaintiff
requested not to transfer money to NEFT and requested to deposit the
amount in his Bank through machine trailer. Accordingly, defendant
used to deposit money in the account of plaintiff and even on some
occasion of festival he had paid cash amount of Rs.2 to 2.5 lakhs and
Rs. 2 lakhs through friend namely Shriram Sawant to the defendant.
Thus, he has paid all the amount to the plaintiff and nothing is due
against him. However, it appears that on the basis of said dishonoured
cheque plaintiff had filed Summary Suit No.424/2018 against the
defendant however, plaintiff had not informed him before depositing
the cheque. It is further contention that the Judgment and Decree
dated 17/11/2018 and he has received copy of the proceedings on
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No.424/2018
11/12/2019. It is his further contention that he has not received notice
or any intimation of the said suit therefore, he could not attend the
Court. Therefore, the delay may be condoned and ex-parte Decree and
Judgment may be set aside. Hence, considering reasons ex-parte decree
may be set aside and notice of motion may be allowed.
04. On the other hand, it is argued on behalf of the plaintiff
that the notice of motion filed by the defendant is not tenable. The
defendant has filed this notice of motion only to avoid payment. It is
further contended that the writ of summons was sent to the defendant
in the Summary Suit alongwith the plaint and documents which was
returned with remark, "Intimation". However, defendant intentionally
avoided to appear in the matter. The defendant has contended that he
has received the copies of the proceeding on 11/12/2019 however,
plaintiff has sent copy of Judgment and Decree dated 17/11/2018 to
the defendant through RPAD on 05/03/2019 and 20/03/2019 which
returned with remark, "Intimation". Further, there is delay of more than
one year and it is not explained satisfactory by the defendant. It is the
contention of the plaintiff that he was doing the work of filing Income
Tax Return for the defendant. Further, as they were acquainted with
each other they used to help the defendant by giving him financial
assistance in cash. In the year 2016, defendant had requested an
amount of Rs.6 lakhs to construct Bunglow and agreed to repay it with
interest at the rate of 15% p.a. However, defendant failed to repay the
said loan amount along with interest. The defendant had alleged that
he had paid some amount to the plaintiff however, it was in respect to
earlier financial help taken by the defendant. Plaintiff has not received
any amount in cash as contended by him. Defendant to discharge his
liability had issued cheque bearing No.009675, dated 31/10/2017 for
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No.424/2018
an amount of Rs. 6,00,000/- drawn on State Bank of Hydrabad, Chiplun
Branch. The said cheque was dishonoured, therefore, plaintiff had filed
Summary Suit No.424/2018, which came to be decided ex-parte after
giving opportunity to the defendant. The defendant has not brought
material on record what prevented him from appearing in the matter
and also not made out special circumstance to defend the suit.
Therefore, delay cannot be condoned and ex-parte Judgment and
Decree cannot be set aside. Hence, Notice of motion may be dismissed.
05. Perused notice of motion, reply and record. Heard both the
parties. The defendant has filed this notice of motion to condone delay
to set aside ex-parte Judgment and Decree dated 17/11/2018 passed in
Summary Suit No. 424/2018. It is the contention of the defendant that
writ of summons is not served on him. On the contrary, it is the
contention of the plaintiff that writ of summons sent to the defendant
returned with remark, "Intimation. On perusing affidavit of service of
writ of summons filed on record on 26/06/2018, it appears that writ of
summons was sent to the defendant by RPAD. It is returned with
remark, "Intimation" on 16/04/2018 and 17/04/2018. Further, it
appears that plaintiff had taken out Notice of Motion No.1480/2018 for
attachment before Judgment and appointment of Officer to attach the
property of the defendant. It appears that the notice of motion sent to
the defendant by RPAD is returned with remark, "Intimation" on
16/04/2018 and 17/04/2018. Therefore, it cannot be said that writ of
summons was not issued to the defendant. On the contrary, it appears
that intimation was given to the defendant, he had failed to collect the
writ of summons from the concerned Post Office. Therefore, on
26/06/2018, order came to be passed to proceed matter ex-parte
against the defendant. Thereafter, matter proceeded ex-parte and it
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No.424/2018
was decreed on 17/11/2018.
06. The defendant has taken out this notice of motion to
condone the delay to set aside ex-parte Judgment and Decree dated
17/11/2018 on 20/12/2019 i.e. almost after one year. As per Art. 123
of Limitation Act, ex-parte decree has to be set aside within 30 days
from date of order or within 30 days from date of knowledge. Though,
it is the case of the defendant that summons was not served on him, on
the contrary, record shows that intimation was given to the defendant
about the writ of summons. Further, as per Order 37, Rule 4 of Civil
Procedure Code, '
After decree 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 defend the suit, if it seems
reasonable to the Court so to do, and on such terms as the Court thinks
fit.' Thus, it appears that defendant has to make out the special
circumstance which prevented him from appearing or applying for leave
to defend and at the same time he has to show facts which could entitle
him to defend the suit.
07. The defendant in affidavit in support of notice of motion
though has contended that he had returned the entire amount of loan to
the plaintiff however, except bare contention he has not produced any
document in support of his contention to show that entire amount is
returned to the plaintiff. Moreover, he has not made a single whisper
how he was prevented from appearing in the matter. Thus, it appears
from the contention of the defendant that he has failed to make out the
special circumstance which prevented him from appearing in the Court.
Further, he has not given any satisfactory, cogent and sufficient reason
to condone the delay to set aside ex-parte Judgment and Decree dated
17/11/2018. Even, defendant has not brought any sufficient material
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No.424/2018
on record to show that he has substantial defence to defend the suit.
Therefore, I am of the view that defendant has failed to make out the
case. Therefore, he is not entitled for any relief. Hence, I proceed to
pass following order :
ORDER
1. Notice of Motion No.4905 of 2019 is dismissed.
2. No order as to costs.
3. Notice of Motion No. 4905 of 2019 is disposed of accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon Mumbai.
Date: 10/07/2024 Court Room No.81
Dictated on : 10/07/2024
Corrected & signed on :10/07/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
11/07/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 10/07/2024
JUDGMENT/ORDER signed by P. O. on 10/07/2024
JUDGMENT/ORDER uploaded on 11/07/2024
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