Bombay High Court
Gurukrupa Machine Tools And Ors vs Schuler Durocomm Gmbh Thr. Its ... on 13 August, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:32464
18-wp10654-2024.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10654 OF 2024
Digitally
signed by
VAIBHAV
VAIBHAV RAMESH
RAMESH JADHAV
JADHAV Date:
2024.08.14
10:09:19
+0530
Gurukrupa Machine Tools & Ors. ... Petitioners
V/s.
Schuler Durocomm GMBH ... Respondent
Mr. Kamalesh P. Mali for the petitioners.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 13, 2024
P.C.:
1. The defendants in a summary suit filed for recovery of an
amount based on e-mail which according to the plaintiffs admitted
the suit claim. The petitioners are challenging refusal by the Trial
Court to condone delay of 2154 days in filing Notice of Motion to
set aside order dated 18 January 2017, by which the Trial Court
directed Summons for Judgment to proceed without leave to
defend.
2. The respondent original plaintiff filed a summary suit for
recovery of an amount of Rs.87,77,217/-. According to the
respondent, the amount became due based on purchase order
bearing No.GMT/P/129 and invoice bearing No.R1112 for amount
of 33,500 Euros equivalent to Indian Rupees 24,05,555/-. It was
also based on invoice bearing No.R1113 for amount of 50,000
18-wp10654-2024.doc
Euros equivalent to Indian Rupees 35,90,381. According to the
plaintiff, defendant No.2 by e-mail dated 27 February 2010
assured the plaintiff that he shall transfer the amount raised by the
plaintiff against two invoices.
3. It is undisputed that the petitioners filed Vakalatnama in the
said suit on 19 October 2015. The Summons for Judgment was
served on the petitioners on 15 December 2015. The Trial Court,
by order dated 18 January 2017, passed an order to proceed the
Summons for Judgment without granting leave to defend.
4. The petitioners filed a Notice of Motion for recalling of order
dated 18 January 2017 by contending that the advocate appointed
by the petitioners did not inform further progress of the matter to
the petitioners. It is only after Covid period, the petitioners got
knowledge about the fact of passing of order dated 18 January
2017 and, accordingly, he filed the Notice of Motion.
5. The Trial Court rejected the Notice of Motion recording a
finding that the advocate for the petitioners had filed Vakalatnama
on 19 October 2015. The Summons for Judgment was served on
15 December 2015, however, till 18 January 2017, the petitioners
did not take any step to seek leave to defend. The Trial Court,
based on aforesaid circumstances, recorded a finding that the
petitioners had sufficient opportunity to seek leave to defend
within a reasonable period.
6. In my opinion, the Trial Court based on reasons aforesaid
rightly recorded a finding that the defendant was not diligent in
contesting the suit. The reason pleaded in the Notice of Motion is
18-wp10654-2024.doc
not sufficient to condone delay of 2154 days.
7. On perusal of the impugned order and considering the fact
that the petitioners had knowledge of pendency of the suit, the
view adopted by the Trial Court for refusing to condone delay of
2154 days cannot be termed as perverse. Exercise of jurisdiction
calling for interference under Article 227 of the Constitution of
India is unwarranted.
8. Hence, the writ petition is dismissed. No costs.
(AMIT BORKAR, J.)
