Final Order 1

Order Details: Notice of Motion
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MHCC010006622019
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
NOTICE OF MOTION NO. 255 OF 2019
IN
SUIT N0. 4877 OF 2011
Mrs. Dhaniben H. Solanki ...Plaintiff
Versus
Mr. Rajen Vasantkumar Dhruv ...Defendant
Appearance :
Ld. advocate Mr. Vikas Singh i/b Mr. Ravishankar Dwivedi for plaintiff.
Ld. advocate Ms. Dimple Vora i/b M/s. Markand Gandhi & Co. for
defendant.
Coram : DR. S. D. TAWSHIKAR
C. R. NO : 61
Heard on : 27/03/2023.
Decided on : 27/03/2023.
ORDER
The present notice of motion (NM) is taken out seeking
condonation of delay of 82 days in filing written statement.
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2 ORDER IN NM No.255/19
IN SU NO. 4877/2011
2. The NM is strongly objected by plaintiff by filing detailed
reply.
3. Heard both the sides.
4. Ld. Advocate for defendant submits that there is no
intentional delay. As the defendant was busy in his construction and
development work, some delay has occurred. It is also submitted that
the employee of plaintiff, who used to handle the documents regarding
the present suit, was changed meanwhile and that has led to some
delay in filing written statement. She submitted that written statement
was affirmed on 16/11/2018 and same is ready.
5. The Ld. Advocate for plaintiff submits that Writ Petition
No.3023 of 2020, filed by present plaintiff, challenging the order of
unconditional leave to defend, is still pending before the Hon’ble High
Court. He submits that owing to incorrect address of defendants, notices
of Writ Petition could not be served on the defendants and that has led
delay in hearing before the Hon’ble High Court. He further submits that
the delay of 82 days is quite huge and same is not properly explained
with special circumstances or cogent reasons. He submits that the
busyness of defendant in his business cannot be good ground to
condone the delay. He also submits that allowing the present notice of
motion would impact upon the Writ Petition pending before the Hon’ble
High Court. He thus prays to reject the motion.
6. I have gone through the record. The Ld. Predecessor of this
Court by order dated 27/07/2018 had granted unconditional leave to
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IN SU NO. 4877/2011
defend. The defendant was required to file written statement within 04
weeks from the date of said order. It was not so filed. On 27/08/2018,
defendant sought time to file written statement, however, the said
request was refused by the court and the order to proceed without
defendant’s written statement came to be passed. Thereafter, defendant
has taken out the present notice of motion on 16/11/2019. Since then
the matter is lingering at the stage of hearing on notice of motion. It
needs to be noted that already more than 4 years have lapsed in
deciding the present notice of motion. The delay sought to be condoned
is of 82 days.
7. I do not find the delay to be inordinate or excessive. It is
true that the defendant ought to have filed written statement within the
time stipulated by this Court, however it appears that owing to some
difficulty on the part of defendant, it was not filed within said time
frame. As this Court has already granted unconditional leave to defend,
it is needless to say that the defendant has good case to defend.
Considering the importance of written statement, the delay of 82 days
shall not take away the right to file written statement.
8. So far as the contention of Ld. Advocate for plaintiff, about
the effect of present order on the pending Writ Petition is concerned, I
do not find much force and logic in the said submission. It is needless
to say that this Court would always be bound by the order passed by the
Hon’ble High Court in pending Writ Petition.
9. The objections raised by the plaintiff cannot outweigh the
grounds for condonation of delay. The delay caused needs to be
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IN SU NO. 4877/2011
compensated. Hence, notice of motion deserves to be allowed subject to
costs for causing delay. Hence, the order-
ORDER
A. Notice of motion No.255/2019 is hereby allowed subject to costs
of Rs.4,000/- (Rupees four thousands only), in terms of prayer
clause (a) and (b), which reads as under -
a) Set aside the “No Written Statement” Order dated
27th August, 2018, passed by this Hon’ble City Civil
Court.
b) That the delay of 82 days in filing Written Statement
be condoned and to take the Written Statement of
Defendant on record in the above suit.
B. The cost be paid to the plaintiff.
C. Defendants to comply the above order on or before next date.
D. Written statement be taken on record subject to compliance of
costs.
E. Notice of Motion No.255/2019 is disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date- 27/03/2023. Court Room No.61
Dictated on : 27/03/2023
Transcribed on : 27/03/2023
corrected on : 27/03/2023
Printed & Signed on : 28/03/2023
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5 ORDER IN NM No.255/19
IN SU NO. 4877/2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
at 4.30 p.m. Ms. Sonali S. Sawant
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
27/03/2023
JUDGMENT/ORDER signed by P. O. on 28/03/2023
JUDGMENT/ORDER uploaded on 28/03/2023
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