Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.6018 in Suit No.851/2014
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.60 OF 2018
IN
SUIT NO.851 OF 2014
A. H. Wadia & Ors. ] ...Plaintiffs.
Vs.
The State of Maharashtra and Ors. ]...Defendants
Appearance :
Advocate Mr. Delhiwala for the Plaintiffs.
Advocate Mr. Kadam for defendants.
CORAM : HIS HONOUR JUDGE
SHRI NANDKISHOR L. MORE
(Court Room No.12)
DATED : 7th JUNE, 2018.
O R D E R
This Notice of Motion is taken out by defendant no.1 for
codonation of delay in filing written statement. It is interalia
contention of the defendant that the letter of request has been served
upon defendant in the year 2014 and thereafter plaintiff has taken out
the chamber summons no.2845 of 2014 for amendment of the plaint
and then copy of the amended plaint was served upon the defendant in
the month of October, 2016. It is further contended that, as the record
pertaining to the subject matter was very old and it took some time to
search the papers. Thereafter, defendant had given instructions to the
office of the Government Pleader to prepare written statement and the
said was approved by the defendant office on 03/03/2017. Because of
this, the delay was caused in filing written statement.
-- 1 of 5 --
:2: N.M. No.6018 in Suit No.851/2014
2. It is further contention of the defendant that notice of motion for
condonation of delay was taken on 30/3/2017. However inadvertently
it was not pressed and same was disposed off. Therefore, defendant is
required to file successive notice of motion for condonation of delay in
filing written statement. The defendant have good case on merit and if
the written statement of defendant is not taken on record it would
cause great harm and irreparable loss to the defendant and prayed that
notice of motion be allowed.
3. Plaintiff filed reply to this notice of motion and strongly objected
to grant it. It is contended that the defendant is guilty of suppressio veri
and/or suggestio falsi. On this ground notice of motion deserves to be
dismissed.
4. Defendant intend to file written statement after and inordinate
and unexplained delay of 1324 days approximately. Defendant has
miserably failed to assign any reason whatsoever for the inordinate
delay in filing written statement. So also, no reasons or sufficient cause
is shown to condone the delay in filing the present notice of motion as
well as written statement and prayed that notice of motion be dismissed
with compensatory costs.
5. Heard Ld. Advocate Mr. Kadam for defendant and Mr. Delhiwala
for the plaintiff. It is beyond controversy that the letter of request had
been served on defendant in the year 2014. Thereafter, defendant have
not taken steps to file written statement within stipulated period.
Advocate for defendant submitted that due to amendment carried out
by plaintiff in the plaint and the amended plaint copy was served on
defendant in the month of October 2016 therefore, they could not filed
-- 2 of 5 --
:3: N.M. No.6018 in Suit No.851/2014
the written statement within stipulated period. Admittedly, notice of
motion taken out by defendant on 23/03/2017 was not pressed
inadvertently and defendant was again required to file the present
notice of motion. I perused the affidavit in support of notice of motion
filed by the plaintiff. There is no whisper of actual number of days delay
caused in filing written statement. The only reason for delay is given by
the defendant is that as the record pertaining subject matter was very
old, it took time to search the papers.
6. Per contra advocate for plaintiff submitted that defendant have
not explain the delay of each days satisfactorily and unless the delay is
satisfactorily explained it should not be condoned. Furthermore, the
delay must not be condoned as a matter of course and/mechanically as
defendant miserably failed to explain the delay in their affidavit but
even avoided to state the number of days delay caused in filing notice of
motion as well as written statement. He placed reliance on Judgment of
Hon'ble Supreme Court of India reported in (2012)3 Supreme Court
Cases 563 in the case of Post master General and Others V/s. Living
Media India Limited and Another. Wherein Hon'ble Apex Court
pleased to observe,
''28.Though we are conscious of the fact that in a matter of
condonation of delay when there was no gross negligence or deliberate
in action or lack of bonafides, a liberal concession has to be adopted to
advance substantial justice, we are of the view that in the facts and
circumstances, the department cannot take advantage of various earlier
decisions. The claim on account of impersonal machinery and inherited
bureaucratic methodology of making several notes cannot be accepted
in view of the modern technologies being used and available. The law
of limitation undoubtedly binds everybody including the Government''.
7. Further he relied on the judgement of Hon'ble Supreme Court
reported in Upadhyay & Co. V/s. State of U.P. and Others (1999) 1
-- 3 of 5 --
:4: N.M. No.6018 in Suit No.851/2014
Supreme Court Cases 81.
8. Above two judgments which are decided by Hon'ble supreme
court in special leave petitions. Ld. Advocate for defendant submitted
that as both the citations are in respect of special leave petition,
therefore, observations in the judgments are not applicable to the
present case. Submissions made on behalf of defendant are not
acceptable as the law is settled that applicant has to explain the delay of
each days and has to explain such delay in a reasonable manner.
Although, defendant was served amendment plaint in the month of
October, 2016, but it is not sufficient ground to condone the delay.
9. I perused the record and affidavit in support of notice of motion.
Defendant have not given satisfactorily explanation to condone the
delay in filing written statement and even not mention the exact
number of days caused delay in filing written statement. However, to
give fair opportunity to the defendant to contest the suit on merit,
written statement of defendant can be taken on record subject to the
cost of Rs. 2,000/ to be paid to the plaintiff. With this I pass following
order:
O R D E R
Notice of Motion no. 60 of 2018 is made absolute in terms of
prayer clause(a) subject to cost of Rs.2,000/ to be paid to the plaintiff.
Date : 07.06.2018 [N.L. MORE]
Judge, City Civil Court,
(C.R. No.12), Gr. Mumbai.
Dictated on : 07.06.2018
Typed on : 14.06.2018
Signed by HHJ on : 14.06.2018
-- 4 of 5 --
:5: N.M. No.6018 in Suit No.851/2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14.06.2018 at 3.00 p.m. Rupali S.Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI NANDKISHOR L. MORE
(Court Room No.12)
Date of Pronouncement of
JUDGEMENT/ORDER
07.6.2018
JUDGEMENT/ORDER signed by
P.O. on
14.06.2018
JUDGEMENT/ORDER uploaded on 14.06.2018
-- 5 of 5 --