Date: 31-01-2019
Business: Adv. Ms.Mehta for Plaintiff
Adv.Sharma for defendant No.1 present.
Adv.Dighe for defendant No.2 present.
Defendant No.2 filed original NM No.318/19.
Plaintiff sought time to file reply to NM. Time is granted.
Adjd. to 29.03.2019 for NM reply.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 29-03-2019
Date: 29-03-2019
Business: Adv. Madakaikar for Plaintiff present.
Adv. Ms.Shaikh for Defendant no.1 present.
Adv. Dighe for Defendant no.2 present.
Plff filed reply to NM on NM itself.
Adj for NM hearing to 08.04.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-04-2019
Date: 08-04-2019
Business: Adv. Madkaikar for Plaintiff present.
Adv. Dighe for Defendant no.2 present.
Adv. Ms. Shaikh for Defendant no.1 present.
Order below Notice of Motion no.318/19.
Read Notice of motion, affidavit in support of it, say of Plaintiffs.
Notice of motion is taken out to set aside order dtd.09.01.2019 and to condone delay caused in filing written statement to take written statement on record.
Plaintiffs have filed their say.
It is a settled law that Order 8 Rule 1 of CPC is not mandatory and in specific circumstances the WS can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India (2003 AIR SCC 189) and Zolba V/s Keshav (2008 AIR SCC 2099) In view of this legal position, I consider notice of motion. It is pertinent to note that defendant no.2 has been impleaded as party defendant in pursuance of order dtd.17.09.18. As per defendant no.2, defendant was served with copy of amended plaint. So they ought to have filed written statement within 30 days therefrom, but they failed to do so. Consequently, matter proceeded without their reply. Delay of 79 days has been caused in filing written statement on their part.
It is contended that deponent the authorised signatory of defendant no.2 suffered from viral infection in last week of October-2018 and was not keeping good health and he was advised to take complete bed rest for 3 weeks. Therefore, he could not finalised written statement. It is further contended that written statement was prepared in second week of November-2018 and it was notarised on 30.11.2018. Request was made to take written statement on record but oral request was declined and they were directed to file appropriate notice of motion for taking written statement on record. It seems that delay caused on the part of defendant no.2 is unintentional and inadvertent. It cannot be said to be deliberate. The reason assigned about illness of the authorised signatory of defendant no.2 is sufficient to condone delay caused in filing written statement and to take the same on record. However, keeping in view conduct of authorised signatory of defendant no.2, it is necessary to impose certain cost upon them. Hence pass following order.
ORDER
1. Notice of Motion No.318/19 is allowed and made absolute in terms of prayer clauses (a) to (c) subject to deposit of costs of Rs.2,000/- in legal aid funds of DLSA, Mumbai within the period of two weeks.
2. On deposit of costs, written statement to be taken on record.
Accordingly, NM No.318/19 is disposed off.
Adj for compliance to 02.05.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 08-04-2019
