Bharat Muddanna Shetty vs. Ahuja Properties

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 9 OF 2021 IN COMMERCIAL SUMMARY SUIT NO. 6 OF 2021

Bharat Muddanna Shetty … Plaintiff Versus Ahuja Properties and Developers & 2 Ors. …Defendants ----------

Gauraj Shah a/w Siddharth Chhabria a/w Pratik Jani a/w Princee Vaishnav i/by Prime Legem – Advocate for the plaintiff Mikhail Behl, Saira Mirzankar i/by Madhukar Mulay - Advocate for the Defendant Nos. 1 to 3.

CORAM : DAMA SESHADRI NAIDU, J. DATE : 28th JUNE 2021.

P.C. :

The plaintiff served summonses on the defendants in this Summary Suit. Then the defendants entered appearance. Thereafter, the plaintiff took out a summons for judgment.

2. In the next 10 days, the defendants must have applied under Order 37, Rule 3 (5) CPC for leave to defend. That has not happened. Later, on 11.06.2021, with certain delay, the defendant requested the Court for some more time to come up with a reply

to the plaintiff's summons for judgment. The Court granted it.

3. Today, the learned counsel for the defendants informs the Court that after serving a copy on the plaintiff's counsel, now the defendants are ready to lodge with the Court the application for condonation of delay. According to him, the defendants have already filed an affidavit seeking leave to defend.

4. In response, the learned counsel for the plaintiff submits that there is "a problem in the nomenclature" the defendant has deployed.

5. As I can see, if there is a delay in the defendants' either entering the appearance or applying for leave to defend, they ought to apply under Order 37, Rule 3(7) of CPC seeking the condonation of delay by supplying sufficient grounds in that regard. Along with that application or subsequently, the defendants must also apply under Order 37, Rule 3(5) of CPC for leave to defend. I reckon this application for leave to defend obviates any adjudication on the plaintiff's summons for judgment; in fact, the application for leave to defend counters the plaintiff's summons for judgment.

6. Confusing as the nomenclature employed by the defendants is, I am given to understand that they have already filed an "affidavit" seeking leave to defend. The learned counsel for the defendants further informs the Court that today the defendants are going to file "an interim application" for condonation of delay.

7. To avoid this confusion, I hold that the defendants may apply—in a proper format—under Order 37, Rule 3 (7) of CPC for the delay condonation. They may also apply—again in a proper format—under Order 37, Rule 3(5) of CPC for leave to defend. Then, based on the replies to be filed by the plaintiff in these two applications, the Court will first hear the application for the delay condonation and later, if the delay is condoned, the defendants' application for leave to defend.

Post the matter on 05.07.2021. By then the defendants must come up with their applications, by serving copies in advance on the plaintiff's counsel.

[DAMA SESHADRI NAIDU, J.]