The Maharashtra Samll Scale ... vs M/S. Uma Engineering Thr. Ulhas ...
2021 Latest Caselaw 10618 Bom

                                                                                wp-3460-21.doc

BDP-SPS


 BHARAT


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 DASHARATH
 PANDIT

  Digitally signed by
  BHARAT




                                         CIVIL APPELLATE JURISDICTION
  DASHARATH
  PANDIT
  Date: 2021.08.13
  17:18:21 +0530




                                        WRIT PETITION NO.3460 OF 2021

                        The Maharashtra Small Scale
                        Industries Development Corporation Limited         .... Petitioner.

                                 V/s

                        M/s Uma Engineering,
                        Proprietary concern
                        Through
                        Shri Ulhas Madhukar Jadhav & Ors.                  .... Respondents.

                        ----
                        Mr. Pralhad P. Paranjape for the Petitioner.

                        Mr. Narayan Sahu with Mr. Chirag Dave i/b Legasis Partners for the
                        Respondent.
                        ----
                                       CORAM: NITIN W. SAMBRE, J.

                                           DATE:     AUGUST 09, 2021
                        P.C.:-

                        1]       Petitioner - State Government Undertaking procured Milk Cans

                        and also got them maintained/repaired from the Respondents.          As

certain dues were outstanding, it is claimed that Respondents were

prompted to file a suit for recovery which came to be decreed on 11 th

March, 2015. Claiming that the said ex-parte judgment came to the

knowledge of the Petitioner/judgment debtor in 2018, after having

wp-3460-21.doc

received a notice of execution, Petitioner filed Notice of Motion

No.3174 of 2018 under Order IX Rule 13 of the Civil Procedure Code

for setting aside the ex-parte decree.

2] Another Notice of Motion No.3360 of 2018 was filed by the

Petitioner for condonation of delay in preferring Notice of Motion

under order IX Rule 13 for setting aside the ex-parte decree being

Notice of Motion No.3174 of 2018.

3] Said prayer was objected by the Respondent/decree holder.

4] In the execution of the decree, at the behest of the

Respondent/decree holder, Application No.146 of 2018 was preferred.

5] Vide impugned order dated 5th October, 2020, Notice of Motion

No.3360 of 2018 for condonation of delay in filing Notice of Motion

under Order IX Rule 13 for setting aside the ex-parte decree, came to be

rejected. As such, this Petition.

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6] Contentions of the learned Counsel for the Petitioner are, the

Petitioner/judgment debtor has a good case on merit in the matter of

setting aside the ex-parte decree under Order IX Rule 13 of the Civil

Procedure Code. However, vide impugned order, the learned City Civil

Court has refused to condone the delay on the ground that while

conducting the suit proceedings, Petitioner had very casual approach

and as such recorded a finding that there is no sufficient ground to set

aside the decree by condoning delay.

7] In response to Court's query, Counsel for the Petitioner, on

instructions, submits that entire decretal amount will be deposited

before the executing court within a period of ten weeks from today.

Since the statement is made on instructions, same is accepted as an

undertaking to this Court.

8] In the wake of above, Counsel for Respondent/decree holder

extends no objection for condonation of delay caused in preferring the

Notice of Motion No.3174 of 2018 under Order IX Rule 13 of the

Civil Procedure Code.

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9] In view of the Undertaking given by the Petitioner to deposit the

entire decretal amount and the no objection extended by Counsel for the

Respondent for condonation of delay, the impugned order dated 5 th

October, 2020 is hereby set aside.

10] Notice of Motion No.3360 of 2018 preferred by the Petitioner for

condonation of delay stands allowed, subject to fulfillment of aforesaid

condition of deposit of the entire decretal amount. If the entire decretal

amount, as undertaken, is not deposited within the time stipulated, the

order impugned shall sustain and Petition be treated as dismissed. In

case the amount as undertaken is deposited, Notice of Motion No.3360

of 2018 be considered to be dismissed.

11] As far as Notice of Motion No.3174 of 2018 is concerned, i.e. the

one preferred under Order IX Rule 13 of the Civil Procedure Code, is

directed to be decided by the learned City Civil Court on its own merits

without being influenced by the present order of condoning delay.

wp-3460-21.doc

12] Let the aforesaid Notice of Motion preferred under Order IX

Rule 13 be decided expeditiously.

13] Petition stands partly allowed in the aforesaid terms.

( NITIN W. SAMBRE, J. )