Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010004762020
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.189 OF 2020
IN
S.C. SUIT NO.5782 OF 2005
(HIGH COURT SUIT NO.220 OF 2005)
Mr. Farooq Mohammed Patel ] … Plaintiff
V/s
1. M/s. Ray Estate & Ors. ] ... Defendants
Appearances :-
Ms. Kirtika Kothari Ld. Adv. for plaintiff.
Ms. Uma Sharma, Ld. Adv. For defendant No.1 to 3.
Mr. Sachin Choudhary, Ld. Adv. for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 1st March, 2021
ORAL ORDER
1. Defendant No.2 took out this Notice of Motion for
condonation of delay in filing additional written statement of defendant
Nos.1 to 3.
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion and say filed of plaintiff’s Advocate in handwriting. Heard
Learned Advocate Ms. Kritika Kothari for plaintiff and Learned Advocate
Ms. Uma Sharma for defendant Nos.1 to 3.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether delay in filing additional written
statement of defendant Nos.1 to 3 can be
condoned?
In the affirmative.
2. Whether additional written statement of
defendant Nos.1 to 3 can be taken on
record ?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of defendant No.2 that he is
Proprietor of defendant No.1 and Constituted Attorney of defendant
No.3. He have himself, as a Proprietor of defendant No.1 and as a
Constituted Attorney of defendant No.3 filed written statement on or
about 03.08.2005.
5. Plaintiff amended plaint on 28.03.2018 as per order dated
21.03.2008 passed in Chamber Summons No.137 of 2017. Plaintiff
added defendant No.9 as a party defendant. In view of the Order
passed in the said Chamber Summons, copy of the amended plaint
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served upon the Advocate of defendants on 02.04.2018. Matter
adjourned for filing the additional written statement of defendant Nos.1
to 3 from 17.04.2018 to 09.07.2018. Meantime, there was Summer
Vacation to the Court from 05.05.2018. On 25.05.2018 he went abroad
and returned back on 17.06.2018. He was at home for 2 days i.e. on
18th and 19th June, 2018 on account of jet leg. Thereafter he could not
contact his Advocate as he was not well. He went to abroad on
27.06.2018 upto 29.10.2018 for his business purpose. Therefore, he
could not contact his Advocate to draft Additional Written statement.
6. There was no Presiding Officer between 30.08.2018 till
November, 2018. Matter was listed on 18.12.2018. He sought time to
file additional written statement. The Court granted him time. The
additional written statement is restricted to one amended paragraph of
the plaint therefore delay in filing additional written statement be
condoned.
7. Plaintiff Advocate filed say in handwriting on the Notice of
Motion itself. In brief, it is contention of the Learned Advocate for
plaintiff that the reasons mentioned in the Notice of Motion are not
proper and sufficient. Sufficient opportunity is already given. If the
Notice of Motion is allowed heavy cost be imposed.
8. The suit is filed in the year 2005. Perused written
statement filed by defendant Nos.1 to 3.
9. Perused Order 8 Rule 1 of Code of Civil Procedure. As per
Order 8 Rule 1 of Code of Civil Procedure the defendant has to file
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written statement within 30 days from the date of service of summons.
As per the proviso of Order 8 Rule 1 where the defendant fails to file the
written statement within the said period of thirty days, defendant can
be permitted to file written statement within 90 days, if defendant
makes out grounds for delay in filing written statement. The proviso of
Order 8 Rule 1 is directory in nature. It is not mandatory.
10. There is delay in filing the additional written statement.
Considering the grounds of delay mentioned in affidavit in support of
Notice of Motion I am of the opinion that delay can be condoned in
filing the additional written statement. Hence, I record my findings to
point No.1 and 2 in the affirmative and point No.3 Notice of Motion is
allowed as per final order. Hence, following order:
ORDER
Notice of Motion no. 189 of 2020 in Suit no. 5782 of 2005 (H.C. Suit
no.220 of 2005) is allowed as under-
1. Delay in filing additional Written Statement of defendant no. 1 to 3
is hereby condoned.
2. Defendant no. 1 to 3 are allowed to file additional Written Statement
on record till next date.
3. Costs in cause.
4. Order dictated and pronounced in open court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 01/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 01/03/2021
Transcribed on : 02/03/2021
Checked on : 02/03/2021
Signed on : 02/03/2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.03.2021 at 05.45 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 01/03/21
Judgment/order signed by P.O. on 02/03/21
Judgment/order uploaded on 02/03/21
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