Bombay High Court
Neminath Developers Thr Its Partner ... vs Kairavy Jimmy Savla on 21 July, 2025
2025:BHC-AS:30372
25.9425.25 wp.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9425 OF 2025
WITH
INTERIM APPLICATION NO. 9283 OF 2025
Neminath Developers Thrs. Its .....Petitioners
Partner Jayesh Ramniklal Dedhia
and anr
Vs.
Kairavy Jimmy Savla .....Respondent
Mr. Pariket Shah for the petitioners
Mr. Amit Kanani, i/b Kanani and Co. for the respondent
CORAM : GAURI GODSE, J.
DATE : 21st JULY 2025
ORDER:
1. This petition is taken up for final disposal at admission
stage.
2. Learned counsel for the respondent waives notice for final
disposal.
3. This petition is filed by the defendants to challenge the order
dismissing the Notice of Motion for condonation of delay of 23
25.9425.25 wp.docx
days in filing an affidavit seeking leave to defend. The respondent
has filed the summary suit for recovering the amount of Rs. 5
Lakhs based on promissory note dated 4 th December 2017.
Though the defendants were served with summons for judgment,
leave to defend was not sought within time. Hence, the Notice of
Motion was filed to condone the delay. This Motion was opposed
by the respondent on the ground that no substantial defence is
disclosed for seeking leave to defend. The Notice of Motion is
dismissed by the impugned order.
4. Learned counsel for the petitioners submits that defendant
no. 2 who is the partner of defendant no. 1 was not available in
Mumbai till 18th August 2023. Hence, for want of proper
instructions, affidavit for leave to defend could not be filed within
time. He submits that the delay in applying for leave to defend is
explained by the defendants in the supporting affidavit of the
Notice of Motion. He submits that the plaintiff can be
compensated by a reasonable cost for the delay on the part of the
defendants in applying for leave to defend.
5. Learned counsel for the respondent submits that vague
25.9425.25 wp.docx
reasons are given in the supporting affidavit for condoning the
delay. He submits that though served with the summons for
judgment, the defendants failed to file affidavit for leave to defend
within time. He submits that neither the affidavit of leave to defend
was filed alongwith motion nor the affidavit in support to the Notice
of Motion discloses any substantial defence. He, therefore,
submits that no purpose would be served by condoning the delay
in applying for the leave to defend. He submits that the
respondent has already filed his evidence affidavit and the suit
has proceeded.
6. I have perused papers of the petition. Receipt of the
summons for judgment on 11th August 2023 is not in dispute. The
affidavit in support of the Notice of Motion discloses the reasons
for the delay on the ground that due to non availability of the
partner of defendant no. 1, affidavit for leave to defend could not
be filed within time. The delay is of 23 days. Considering the
reasons given in the supporting affidavit regarding explanation for
the delay, time to file leave to defend can be extended by
compensating the plaintiff for the delay by imposing the cost upon
25.9425.25 wp.docx
the defendants. A perusal of the affidavit in support of the Notice
of Motion reveals that the defendants have raised the objection to
the promissory note relied upon by the plaintiff and the
defendants' contentions are briefly stated in the supporting
affidavit. Thus, considering the affidavit in support to the Notice of
Motion, I do not see any reason to refuse to condone the delay of
23 days. The delay can be compensated by imposing cost upon
the defendants.
7. For the reasons recorded above, the petition is allowed by
passing the following order:
ORDER
I. The impugned order dated 24th March 2025
passed by Notice of Motion No. 1658 of 2024 in
Summary Suit No. 18 of 2022 by City Civil Court and
Additional Session Judge, Borivali Division, Dindoshi,
Mumbai is quashed and set aside.
II. Notice of Motion No. 1658 of 2024 is allowed
subject to payment of cost of Rs. 25,000/- to be paid
to the respondent-plaintiff.
25.9425.25 wp.docx
III. The cost shall be directly paid in the plaintiff's
bank account within two weeks from today.
IV. If the amount of cost is paid, the petitioners
(defendants) shall be at liberty to file affidavit-in-reply
to the summons for judgment on the next date in the
City Civil Court.
V. It is clarified that the payment of cost as directed
by this Court is condition precedent for allowing Notice
of Motion No. 1658 of 2024. It is therefore clarified that
if the cost is not paid within the time granted, this Writ
Petition will stand dismissed without further reference
to the Court.
8. Writ Petition is allowed in the aforesaid terms.
9. In view of disposal of the Writ Petition, Interim Application is
disposed of as infructuous.
[GAURI GODSE, J.]
