Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010134492019
CNR No. MHCC010134492019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4913 OF 2019
IN
SUMMONS FOR JUDGMENT NO.197 OF 2019
IN
SUMMARY SUIT NO.1340 OF 2017
Mr. Ashok Mangilal Doshi ] … Plaintiff
V/s
Vs. M/s. Impack Machineries ]
(I) Pvt Ltd and Ors. ] ... Defendants
Appearances :-
Mr. Mourya, Ld. Adv. for plaintiff.
Mr. R.R. Sharma, Ld. Adv. for defendant Nos.1 to 3.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 27th April, 2021
ORAL ORDER
1. Defendant No.1 took out this Notice of Motion for
condonation of delay in filing the Vakalatnama for defendant No.1 and
to take Vakalatnama on record.
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2. Perused Notice of Motion, Affidavit in support of Notice of
Motion and say of plaintiff filed through Advocate of plaintiff in hand
writting over leaf the affidavit in support of Notice of Motion.
3. Heard Learned Advocate Mr. Maurya for plaintiff, Learned
Advocate Mr. R. R. Sharma for defendant Nos.1 to 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 Vakalatnama of
defendant No.1 can be condoned?
In the affirmative.
2. Whether defendant No.1 can be permitted
to enter his appearance before the Court ?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of defendant No.1 that defendants
had appointed Mr. Karan Mishra, Advocate on their behalf in this
matter. Advocate Mr. Karan Mishra took signature of defendant Nos.2
and 3 only and filed Vakalatnama on 06.02.2019 in the Court.
Advocate Mr. Karan Mishra did not file Vakalatnama on behalf of the
defendant No.1 and also did not inform to defendant No.1 about the
the same.
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6. Advocate Mr. Karan Mishra gave no objection to appoint
new Advocate and handed over all the papers to defendant No.1. New
Advocate of defendant No.1 verified the proceedings and found that
there is no Vakalatnama for defendant No.1. Mrs. Saba Sabri filed
affidavit in support of Notice of Motion. It is her contention that she
was on maternity leave from 01.02.2019 to 15.12.2019 and therefore,
she was unable to execute/ sign the Vakalatnama for defendant No.1.
Defendant passed Board Resolution dated 26.02.2019 in the Board
Meeting held on 26.02.2019 and thereby authorized her to represent
the defendants. Therefore, delay be condoned and Vakalatnama for
defendant No.1 be taken on record.
7. It is contention of the plaintiff that plaintiff has strong
objection to allow the Notice of Motion.
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 and 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 7 of the Code of Civil
Procedure. It runs as under:
“The Court or Judge may, for sufficient cause
shown by the defendant, excuse the delay of
the defendant in entering an appearance or in
applying for leave to defend the suit”.
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10. This Notice of Motion is registered on 23.12.2019. Affidavit
in support of Notice of Motion is noterized on 17.12.2019.
11. In view of provisions of Order 37 Rule 3 Sub Rule 1 there is
delay in entering appearance of the defendant No.1. 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.
12. Hence, in facts and circumstances delay in entering
appearance of defendant No.1 is condoned. Defendant No. 1 can be
permitted to enter it’s appearance. Hence, I record my findings to point
No.1 and 2 in the affirmative and point No.3 Notice of Motion is
allowed as per final order. Hence, following order:
ORDER
Notice of motion 4913 of 2019 in Summons for Judgement no. 197 of 2019 in
Summary Suit no. 1340 of 2017 is allowed as under.
1. Delay in entering the appearance of defendant no. 1 is hereby condoned.
2. Defendant no. 1 is allowed to enter its appearance.
3. Vakalatnama for defendant no. 1 filed by advocate Mr. R. R. Sharma be
taken on record.
4. Order dictated and delivered in open court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 27/04/2021 City Civil Court, Gr. MUMBAI
Dictated on : 27/04/2021
Transcribed on : 27/04/2021
Checked on : 29/04/2021
Signed on : 29/04/2021
( 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”
29.04.2021 at 03.33 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 27.04.2021
Judgment/order signed by P.O. on 29.04.2021
Judgment/order uploaded on 29.04.2021
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