Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.40/18 ..1.. Suit No.914/17
CNR No.MHCC010000732018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.40 OF 2018
IN
SUIT NO.914 OF 2017
Sicom Realty Limited .. Plaintiff
Versus
Vidharbha Industries Power Limited .. Defendant
None for plaintiff
Learned Advocate Bijal Vora for defendant
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 3rd May, 2018
: ORDER :
1. Order dated 28/11/2017 is under challenge in this notice of
motion.
2. Story put forth by defendant in short is that,
Writ of summons is served on 2nd May, 2017. Defendant
appeared through his previous advocate. However defendant could not
collect required documents within 90 days. Therefore he could not file
written statement. Delay is not deliberate or intentional. In such
eventuality if participation is not allowed much injustice will cause to
him. Hence, this notice of motion for condonation of delay and leave to
file written statement.
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NM No.40/18 ..2.. Suit No.914/17
3. In spite of service no reply is filed to this notice of motion by
plaintiff. Hence notice of motion proceeded without reply.
4. Before entering into actual merit, let me quote that provision
of Order 8 Rule 1 of Civil Procedure Code is procedural and directory in
nature. Basic object of incorporation of Order 8 Rule 1 is to curb
mischief played by unscrupulous litigants who cause delay in disposal of
cases. Departure from time schedule is permissible in cases where
circumstances are beyond the control of parties or in cases when it is
required to prevent injustice to the other side. Reliance in that regard,
can be placed on the law laid down in case of Sambhaji and Others Vs.
Gangabai and others [(2008) 17 Supreme Court Cases 117] and in
case of State of Goa & Ors. Vs. H.B.Singh & Co. [2012 (4) ALL MR
750]. By keeping well in mind this basic requirement let me turn
towards factual aspects.
5. It is contention of defendant that as the time consumed in
collecting the documents and information he could not file written
statement within stipulated period. However, this circumstance cannot
be said to be beyond the control of party or exceptional circumstance.
Hence, on that count defendant is not entitled for condonation of delay.
6. Pertinent to note that rules of procedure are made to advance
the cause of justice. Equity and substantial cause of justice always
demands opportunity. Hence with a view to decide real point in
controversy once for all on merit and with a view to avoid multiplicity
of lis delay is require to be condoned. However, considering the
negligence at the hands of defendant cost is require to be imposed.
Hence I pass following order:
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NM No.40/18 ..3.. Suit No.914/17
: ORDER :
1. Notice of Motion No.40 of 2018 is made absolute in terms of
prayer clause No. (a) to (d) subject to cost of Rs.2,000/ by defendant
to plaintiff on or before next date.
2. After payment of cost permission is granted to defendant for
filing its written statement.
3. Defendant is directed to file the written statement on next
date and that too by payment of cost.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
Judge
City Civil & Sessions Court,
Date :03/05/2018 Gr. Bombay
Typed on : 03/05/2018
HHJ signed on :
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NM No.40/18 ..4.. Suit No.914/17
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05.05.2018, 5.45 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
03.05.2018
JUDGMENT/ORDER signed by P.O.
on
05.05.2018
JUDGMENT/ORDER uploaded on 05.05.2018
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