Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010135712019
CNR No. MHCC010135712019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4957 OF 2019
IN
SUMMONS FOR JUDGMENT NO.197 OF 2019
IN
SUMMARY SUIT NO.1340 OF 2017
Mr. Ashok Mangilal Doshi ] … Plaintiff
V/s
1. M/s. Impack Machineries ]
(I) Pvt Ltd
2. Mr. Sami Mohammed Syed ]
3. Mrs. Alifia Sami Syed ] ... 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
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ORAL ORDER
1. Defendants took out this Notice of Motion for condonation
of delay in filing reply to the Summons for Judgment and allowed
defendants to leave to defend.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and say of plaintiff advocate given in handwritting over the leaf
the affidavit in support of the Notice of Motion.
3. Heard Learned Advocate Mr. Maurya for plaintiff and
Learned Advocate Mr. R.R. Sharma for the 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 reply to the
Summons for Judgment No.197 of 2019
can be condoned?
In the affirmative.
2. Whether reply of defendant Nos.1 to 3 to
the Summons for Judgment can be taken
on record ?
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 the defendants that deponent
Mrs. Saba Sabri is authorized vide Board Resolution dated 26.02.2019
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passed by the meeting of Board of Directors held on 26.02.2019 to
represent the defendants.
6. Advocate Mr. Karan Mishra had filed vakalatnama on
behalf of the defendants on 06.02.2019. Plaintiff took out Summons for
Judgment dated 24.06.2019. Advocate Mr. Karan Mishra informed
defendants on 21.09.2019 that he is unable to attend the matter and
gave no objection to appoint new Advocate for the defendants.
Defendants appointed new Advocate. Advocate Mr. R. R. Sharma and
S.K. Tiwari filed Vakalatnama on 14.10.2019 on behalf of defendants.
Copy of the Summons for Judgment is supplied to the new Advocate on
14.10.2019. Therefore, there is delay in filing the reply to the
Summons for Judgment.
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 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
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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.
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. Perused Order 37 Rule 3 Sub Rule 6 of the Code of Civil
Procedure. It runs as under:
“At the hearing of such summons for
Judgment-
(a) if the defendant has not applied for
leave to defend, or if such application has been
made and is refused, the plaintiff shall be
entitled to judgment forthwith; or
(b) if the defendant is permitted to
defend as to the whole or any part of the claim,
the Court or Judge may direct him to give such
security and within such time as may be fixed by
the Court or Judge and that, on failure to give
such security within the time specified by the
Court or Judge or to carry out such other
directions as may have been given by the Court
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or Judge, the plaintiff shall be entitled to
judgment forthwith”.
12. This Notice of Motion is registered on 26.12.2019.
Affidavit of Mrs. Saba Sabri in support of Notice is Noterized on
17.12.2019.
13. 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”.
14. There is delay as per Order 37 Rule 3 Sub Rule 4 of the
Code of Civil Procedure defendant should file reply to the Summons for
Judgment. Considering grounds mentioned in the Notice of Motion, I
am of the opinion that delay can be condoned. 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 4957 of 2019 in Summons for Judgement no. 197 of 2019 in
Summary Suit no. 1340 of 2017 is allowed as under.
1. Delay in filing reply of defendant no. 1 to 3 to the summons for Judgement
No. 197 of 2019 is hereby condoned.
2. Defendant no. 1 to 3 are allowed to file reply to the summons for
judgement.
3. Reply of defendant no. 1 to 3 to the summons for judgement be read and
recorded.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 27/04/2021 City Civil Court, Gr. MUMBAI
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Dictated on : 27/04/2021
Transcribed on : 04/05/2021
Checked on : 04/05/2021
Signed on : 04/05/2021
( 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”
04.05.2021 at 11.50 a.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 04.05.2021
Judgment/order uploaded on 04.05.2021
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