Interim Order 1

Order Details: Order
Pdf Text: N/M 4228/23
In Summ. Suit 168.21 1 ORDER
MHCC040111142023
IN THE BOMBAY CITY CIVIL COURT AT DINDOSHI
(BORIVALI DIVISION), GOREGAON, MUMBAI
NOTICE OF MOTION NO. 4228 OF 2023
IN
SUMMARY SUIT NO. 168 OF 2021
M/s Tiger Digitech Pvt. Ltd. ...Applicant/Ori. Defendant
V e r s u s
Mr. Clinton Lohit Goveas ...Plaintiff.
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Ld. Advocate Arun Upadhyay for the plaintiff.
Ld. Advocate Sneha Wani for the defendants.
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CORAM : Shri.S.M.Agarkar,
Ad-hoc Judge, City Civil Court
and Additional Sessions Judge,
Borivali Division, Dindoshi, Mumbai.
(C. R. NO. 05)
Date : 7th May, 2025.
O R D E R
1. The present notice of motion is taken out by the defendant
to reject the plaint under order 7 rule 11 (a) , (c) and (d) r/w Sec. 151
of the code of civil procedure and also for stay of proceeding till the
decision on notice of motion.
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In Summ. Suit 168.21 2 ORDER
2. According to defendant, the plaintiff has filed present suit
under Order 37 of the Code of Civil Procedure for the recovery of Rs.
26,79,757/- against the outstanding salary. The defendant appeared in
the suit on 31-08-2021 without service of writ of summons. Thereafter,
the plaintiff has not taken out summons for judgment within time of six
months. Therefore, the defendant filed an application on 01-04-2023
for dismissal of the suit, as for more than two years the plaintiff has not
taken out summons for judgment. There are various judgments of
Hon’ble Bombay High Court for dismissal of summary suits for not filing
summons for judgments within six months from the date of filing of the
summary suit under Rule 119(4) of the Bombay City Civil court rules
1948. Therefore, the suit is liable to be dismissed.
3. The plaintiff has not filed reply to the notice of motion.
Hence notice of motion proceeded for hearing without reply vide order
dated 29-01-2025.
4. I have heard Ld Advocate from both the sides. The
submission of the Ld Advocate for the defendant are in the line of
contentions in affidavit filed in support of notice of motion.
5. Per contra, Ld. Advocate for the plaintiff submitted that if
the plaintiff failed to take out summons for judgment within six month,
suit cannot be dismissed, however, court can direct that suit to be
proceeded as a regular suit instead of summary civil suit under Order
37. He placed reliance on following cases:-
1) Emirates Islamic Bank Pjsc
Vs Chandra Dev Narain Singh Ors., dated 11 April 2014, 2) Bankay
Bihari G Agrawal Vs M S Bhagwanji Meghihi Ors., dated 27 September
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In Summ. Suit 168.21 3 ORDER
2000.
6. There is no dispute on the point that after entering the
appearance by the defendant after service of writ of summons, the
plaintiff has not taken out summons for judgment within a period of six
months and even the plaintiff has not taken out notice of motion for
condonation of delay. From record it appears the defendant has entered
his appearance in suit on 31-08-2021. thereafter, on 01-04-2023 the
defendant has filed application (Exh.6) for dismissal of the suit. The
plaintiff has filed draft of summons for judgment on 06-10-2023, ie.
after two years of appearance of the defendant. The plaintiff even in
reply not stated any reason or cause for delay.
7. I have gone through judgments cited by the plaintiff. In the
case of Emirates Islamic bank (Supra), the plaintiff therein had taken
out chamber summons for condonation of delay stating the reasons for
delay in taking out summons for judgment. However, in the case in
hand as discussed above, the plaintiff has not taken out chamber
summons/notice of motion for condonation of delay. Even, in reply to
the present notice of motion he has not stated any satisfactory reasons
for delay in taking out summons for judgment.
8. In the case of Bankay Bihari (Supra), while deciding the
reference, the Hon’ble division bench of the Bombay High Court while
answering, the point “(1) What is the legal consequence of a Summons
for Judgment not being taken out be a Plaintiff within the period of 6
months of the plaint being filed ?”, observed that “it would be open to
the Court to tell the Plaintiff that, inasmuch as he had not been vigilant
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In Summ. Suit 168.21 4 ORDER
in the taking out of Summons for Judgment, the Court would decline
to allow the Plaintiff to adopt the summary procedure and relegate him
to the remedy of an ordinary suit. “Vigilantibus et non dorminentibus
Jura Subveniunt” is the maxim which governs all legal proceedings. The
inherent power of the Court to do justice was also called in ad. We are
of the view that the inherent power of the court can be called int aid
unless there is a specific legislative provision or rule of procedure
governing the issue. Either way, in our view, the court has sufficient
judicial discretion in the matter, [See in this connection, Ramkarandas
Radhavallabh V. Bhagwandas Dwarkadas,. In our view, reliance on the
Supreme Court judgment in Supreme Court bar Association V. Union of
India and Anr., may not be appropriate for it deals with the contemp
power of a Court of record, particularly the Supreme Court, under
Articles 142 and 129 of the Constitution of India. The situation is not
parallel one and the judgment has no application.”
9. The question No. 1 was answered as “The Suit is liable to
be placed on the board of the Chamber Judge for dismissal. It is open to
the Plaintiff to contend before the Chamber Judge that for good reasons
the suit ought not to be dismissed. It is left to the judicial discretion of
the Chamber Judge to dismiss the suit or direct it to proceed on such
terms as he deems fit.”
10. Thus, the Hon’ble division bench of Hon’ble Bombay High
Court has held that it is the discretion of the Court. Of course, the
discretion has to be exercised judiciously. While exercising the
discretion judiciously, it is not desirable to dismiss the suit for the
default in following procedure under Order 37 strictly, but to relegate
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In Summ. Suit 168.21 5 ORDER
the plaintiff to the remedy of an ordinary suit to which he had
otherwise entitled without following time bound stages. Therefore, I
proceed to pass the following order:-
O R D E R
1. The Notice of Motion No. 4228 of 2023 is dismissed.
2. On the oral request of the plaintiff, he is allowed to relegate to the
remedy of an ordinary suit. The Registrar (civil) is directed to convert
the present suit into Short Cause Civil Suit.
3. After conversion of suit the defendant shall file written statement
within thirty days.
4. The Notice of Motion No.4228 of 2023 is disposed of accordingly.
Date : 07.05.2025
(S.M.Agarkar)
Ad-hoc Judge,
City Civil Court and Additional
Session Judge, Borivali Division,
Dindoshi, Mumbai.
Directly typed on computer on : 07.05.2025
Signed by HHJ on : 07.05.2025
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In Summ. Suit 168.21 6 ORDER
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19.05.2025 at 11.25 a.m. Vinit Kuber
UPLOAD DATE AND TIME Clerk Typist
Name of the Judge (With Court room no.) SHRI. S.M.Agarkar
(C.R. NO.5)
Date of Pronouncement of JUDGMENT/ ORDER 07.05.2025
JUDGMENT/ORDER signed by P.O. on 07.05.2025
JUDGMENT/ORDER uploaded on 19.05.2025
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