The State Trading Corporation Of ... vs Masumi Overseas Pvt. Ltd. And 2 Ors
2022 Latest Caselaw 3741 Bom

                                                                      19-2-NMS114-2015.DOC

                                                                                    Santosh
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION
                                       IN ITS COMMERCIAL DIVISION


                                    NOTICE OF MOTION NO. 114 OF 2015
                                                  IN
                                   COMM SUMMARY SUIT NO. 49 OF 2011

                      M/s. Masumi Overseas Private Ltd.                      ...Applicant
                      In the matter between
                      The State Trading Corporation of India Ltd.              ...Plaintiff
                                           Versus
                      M/s. Masumi Overseas Private Ltd.                     ...Defendant


                      Ms. Laxmi Maria Jenkins, i/b LMJ Law Practice, for the
SANTOSH
SUBHASH                    Plaintiff.
KULKARNI
Digitally signed by
                      Mr. Dhairyasheel Sutar, a/w Sanjeev Rawat, Kruti Garg and
                           Kavita Vijapure, for defendant nos.1 and 3.
SANTOSH
SUBHASH
KULKARNI
Date: 2022.04.08
11:22:24 +0530




                                                 CORAM:     N. J. JAMADAR, J.

                                                 DATED :    6th APRIL, 2022
                      PC:-

1. Not on board. Mentioned. Taken on board.

2. Heard the learned Counsel for the applicant/plaintiff.

3. This Notice of Motion is taken out to dismiss the suit by invoking Rule 227 of the Bombay High Court (Original Side) Rules, for default on the part of the plaintiff to apply for decree within six months after filing of the plaint.

4. The substance of the application is that the plaintiff had not applied for decree within six months of the institution of the suit on 6th May, 2011 and the Summons for Judgment was

19-2-NMS114-2015.DOC

lodged on 5th March, 2012. Therefore, in view of the peremptory Rule 227, the suit deserves to be dismissed.

5. An affidavit-in-reply is filed on behalf of the plaintiff, wherein the assertions of the defendants are controverted. The plaintiff has referred to the dates on which the defendants entered appearance. It is asserted that the plaintiff had taken out the Summons for Judgment within time and no case for application of Rule 227 is made out.

6. Evidently, this application was taken out in the month of October, 2015. The defendants have, thereafter, filed affidavits- in-reply seeking leave to defend the suit. At this length of time, the question of default in taking out the Summons for Judgment, within stipulated period, does not merit countenance. In any event, the suit was never listed for dismissal on the count of default on the part of the plaintiff to apply for the decree within the stipulated period. Moreover, the Court has ample discretion to condone the delay in complying with the provisions contained in Rule 227 of the Rules. Thus, to advance the cause of justice, particularly, with the passage of time, at this juncture, it may not be expedient to interdict the proceedings for non-compliance of Rule 227.

7. Hence, Notice of Motion stands dismissed.

[N. J. JAMADAR, J.]