Bombay High Court
Samir N. Bhojwani vs Kavita G. Rajani on 18 February, 2021
Bench: N. J. Jamadar
1/3 18-19-ial-3301-3302-2021-comss-205-211-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (LODG.) NO. 3301 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO. 205 OF 2020
Samir N. Bhojwani .. Applicant
In the matter of :
Kavita G. Rajani .. Plaintiff
Vs.
Samir N. Bhojwani .... Defendants
AND
INTERIM APPLICATION (LODG.) NO. 3302 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO. 211 OF 2020
Samir N. Bhojwani .. Applicant
In the matter of :
Gautam G. Rajani .. Plaintiff
Vs.
Samir N. Bhojwani .... Defendants
Mr. Cherag Balsara a/w. Mr. Parimal K. Shroff, Mr. D.V. Deokar, Ms. Jasmine
Upadhye, Mr. D. Parikh i/b Parimal K. Shroff and Co. for
applicant/defendant in both matters.
Mr.Kishore Jain a/w. Mr. Mukul Taly, Ms. Malika Taly and Mr. Aziz Mohd.
i/b S. Mahomedbhai & Co. for plaintiff in both matters.
CORAM : N.J. JAMADAR, J.
DATE : 18th FEBRUARY 2021
P.C.
Shraddha Talekar PS
2/3 18-19-ial-3301-3302-2021-comss-205-211-2020.doc
INTERIM APPLICATION (LODG.) NO. 3301 OF 2021
AND
INTERIM APPLICATION (LODG.) NO. 3302 OF 2021
1. These applications are taken out by the defendant under Order
XXXVII Rule 4 of the Code of Civil Procedure, 1908 ('The Code') to set
aside the decree passed by this Court in both the suits on 15 th January
2021. The Court had noted that the defendant did not enter appearance
within the stipulated period despite the service of writ of summons.
2. In the instant applications, the principal contention is that though
the writ of summons were stated to have been served on the defendant,
yet, in view of the exigency of the situation which arose on account of
Covid-19 Pandemic, the defendant had, in fact, been not served with the
writ of summons. It is further contended that the defendant has a strong
defence on merits. The plaintiff controverted the allegations on both the
service of writ of summons and the nature of the defence.
3. In the backdrop of the fact that passing of consideration was not
controverted, the defendant has, without prejudice to the defendant's
contentions, offered to deposit the principal amount with the office of the
Prothonotary and Senior Master. The learned counsel for the defendant has
tendered the original Pay Orders payable on 17 th February 2021 drawn in
favour of the Prothonotary and Senior Master, High Court, Bombay.
4. The learned counsel for the plaintiff is agreeable to the aforesaid
Shraddha Talekar PS
3/3 18-19-ial-3301-3302-2021-comss-205-211-2020.doc
proposition.
5. In the aforesaid view of the matter, in order to advance the cause of
justice, and to provide an effective opportunity to the defendant :
(a) The decrees are set aside and the defendant is permitted to enter
appearance by condoning the delay in entering the appearance, subject to
deposit of the principal amount of Rs.1,11,00,000/- (in Commercial
Summary Suit No.205/2020) and an amount of Rs.1,80,00,000/- (in
Commercial Summary Suit No. 211 of 2020).
(b) Commercial Summary Suits Nos.205 of 2020 and 211 of 2020 stand
restored to file.
(c) The Prothonotary and Senior Master is directed to invest the amount
to be deposited by the defendant in an interest bearing fixed deposit
initially for a period of three months and to be renewed thereafter, in terms
of the order of the Court, and, in absence thereof for an identical term.
6. The plaintiff to take out summons for judgment and serve the same
on the defendant within a period of two weeks from today.
7. The interim applications stand disposed of.
Digitally
signed by 8. All interim orders stand vacated.
Shraddha Shraddha
K. Talekar
K.
Date:
Talekar 2021.02.18
19:08:54
+0530
[ N.J. JAMADAR, J. ]
Shraddha Talekar PS
