Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.305 OF 2020
IN
COMMERCIAL SUIT NO.105 OF 2020
IN
SUIT NO.2809 OF 2018
Delta Iron & Steel Co.Pvt.Ltd. ... Plaintif
V/s
Forbes & Company Ltd., ....Defendant
APPEARANCE:-
Advocate Kamlesh Mishra for plaintif.
Advocate Mayank Veera for defendant.
CORAM : H. H. AD-HOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO.32)
DATE :12th February, 2020
Perused Notice of Motion alongwith affidavit.
2. It is submitted by the defendant the present suit is filed by
plaintiff against defendant for recovery of amount of Rs.2,08,808/-
in the court and the writ of summons was served upon the
defendant on 15/7/2019. It is submitted by the defendant that the
writ of summons was received to him without copy of plaint and
therefore, the defendant was completely unaware about the nature
of dispute in the present matter and therefore, he rushed to consult
his advocate. It is further submitted by the defendant that the
defenant advocate sent several correspondence to the advocate for
copy of plaint and annexture however, advocate for plaintiff failed
to tender/serve copy of plaint to the defendant. Fianlly on
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7/10/2019 advocate for the plaintiff was served draft copy of plaint
but it was incomplete copy. It is further submitted that on
19/12/2019 suit was listed for taking steps however, the suit was
proceeded without written statement against defendant. It is further
submitted that defendant had taken initiavie on various occasion
via multiple correspondence with the advocate of the plaintiff to
ensure the service of complete copy of plaint and it is the plaintiff
who have failed to provide the same and therefore, the defendant
has failed to file written statement within 30 days from the date of
service. Lastly, it is prayed that the Notice of Motion may be
granted by setting aside no written statement order and defendant
may be permitted to file written statement on record.
3. Plaintiff resisted Notice of Motion by filing written reply. It
is contended by plaintiff that the defendant claimed that the copy
of suit filed before the court was not served upon defendant but
that fact never brought before the court. It is further contended
by the plaintiff that the defendant purposely avoiding filing of
written statement on time within time frame, when this court
passed no written statement order against defendant and making
allegation against plaintiff whereas plaintiff has served copy of
plaint well within time and when defendant further requested again
plaint has been served upon defendants. Lastly, it is prayed that
the Notice of Motion may be rejected with costs.
4. Ld.Counsel for defendant Mayank Veera submitted that writ
of summons was received to the defendant on 5/7/2019 however,
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no copy of plaint and annextures was served to the defendant. He
pointed out that advocate for defendant sent several emails and
correspondence to the plaintiff, however, plaintiff failed to serve
copy of plaint and annexture to the defendant. Finally, on
7/10/2019 plaintiff served draft copy of plaint to the defendant
however, it was unaffirmed copy. Ld.Counsel for plaintiff submitted
that plaintiff has failed to serve copy and therefore, defendant
failed to file written statement within stipulated time. Lastly, it is
prayed that defendant may be granted one opportunity to contest
the suit by filing written statement.
5. Per contra, Ld.Counsel for plaintiff Kamlesh Mishra submitted
that copy of plaint and annexture was served twice to the
defendant within time. He placed acknowledgement copy on
record and submitted that the plaintiff has already served copies of
plaint and annexture to the defendant however, defendant
suppressed the material facts from the court and not come in the
court with clean hands and therefore, Notice of Motion is liable to
be rejected on sole ground. Kamlesh Mishra advocate for plaintiff
submitted that defendant never brought this ground to the notice
of court that he has not served copy of plaint and annexture.
Lastly, it is submitted that the stipulated time is over and court
does not have power to grant relief as prayed by defendant in the
Notice of Motion. He prayed that the Notice of Motion may
kindly be dismissed with costs.
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6. After hearing both the parties I drew my attention towards
record intitially the suit was registered for recovery of amount.
Later on, it was registered as a commercial suit. Admittedly, the
plaintiff has failed to file affidavit of service on record. However,
the defendant was not disputed that the writ of summons was
served upon defendant on 15/7/2019. Admittedly, till today the
defendant has failed to file written statement on record. In
Commercial Suit as per O.VIII R.1 of CPC., “where the defendant
fails to file the written statement within the said period of 30
days, he shall be allowed to file written statement on such other
day, as may be specified to the Court, for reasons to be recorded
in writing and on payment of such costs as the Court deems fit,
but which shall not be later than 120 days from the date of service
of summons and on expiry of 120 days from the date of service of
summons, the defendant shall forfeit the right to file written
statement and Court shall not allow the written statement to be
taken on record”. As per record after service of summons advocate
for defendant appeared on behalf of defendant and filed
vakalatnama on 17/9/2019. Thereafter, suit was posted on
19/12/2019. On 19/12/2019 defendant failed to file written
statement and order was passed by the Court after five months and
four days i.e. 154days. In the meantime, the defendant does not
brought the facts to the knowledge of court he does not receive
the copy of plaint and annexture. Moreover, Ld.Counsel for
plaintiff filed acknowledgement on record that the defendant
received copy of plaint on 24/10/2019 as admitted by the
defendant in the Notice of Motion. The defendant has received
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copy of plaint and annexture on 7/10/2019. When two times the
defendant received copy of plaint then why the defendant has not
filed written statmenet within stipulated time is not at all
explained by defendant in the entire Notice of Motion. Moreover,
the defendant suppresed the facts of receiving copy of plaints on
two times it shows that there is no any other ground with the
defendant for explanation of delay then under the provision of
Commercial Court of 120 days was over then court does not have
power to condone the delay. Hence, I proceed to pass following
order.
ORDER
Notice of Motion No.305 of 2020 is dismissed with costs.
Date:-12/02/2020 (Milind A.Bhosale)
Ad-Hoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on :- 12/02/2020
Typed on :- 12/02/2020
H.H.J.Signed on :- 12/02/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/02/2020 at 4.35 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
12/02/2020
JUDGMENT/ORDER signed by P.O. on 12/02/2020
JUDGMENT/ORDER uploaded on 12/02/2020
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