Final Order 1

Order Details: Other
Pdf Text: 20.01.2020
Com
154/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
None present for plaintiff.
Adv. Jinal Vani for defendant No. 1 and 2 present.
KB
LO
Adv. Dipesh Siroya for plaintiff present and tendered registered
NM 4233/19 t.o.r.
Adv. Salaskar for defendant No. 3 present.
He tendered registered NM 328/20 t.o.r.
Say filed by adv. for
Adv. Mr. Mallom Siganporia along with Adv. Jinal Vani for
defendant No. 1 and 2 present.
Heard both sides on NM No.328 of 2020
Following order is passed below Notice of Motion No.328/2020
Perused notice of motion, affidavit in support of it, reply
of plaintiff and roznama of proceeding. Heard respective
counsel for parties.
Notice of motion is taken out by the defendant No.3 for
condoning delay caused in filing written statement and to take
the same on record.
It is the contention of defendant No.3 that writ of
summons was served upon them on 27.11.2019. Due to
vacations their advocate was not available so authorised
signatory of these defendant could not contact their advocate
for finalizing the written statement. Consequently, they failed to
file their written statement within stipulated period. It is
further contended that as soon as their advocate resumed their
authorised signatory contacted her and finalized written
statement. But, delay has already been caused in filing written
statement. It is further contended that delay caused is not
intentional or willful. Accordingly, they made prayer in above
terms.
Plaintiff through advocate filed reply on notice of motion
itself and leave it to the discretion of this Court.
On perusal of roznama it appears that defendant No.3
appeared through their advocate on 13.12.2019 and their
advocate waived service of writ of summons. However,
defendant No.3 fairly conceded that writ of summons was
served upon them on 27.11.2019. They ought to have filed
written statement within 30 days from the date of service of
summons but they failed to do so. They have taken out present
notice of motion on 18.01.2020. Thus, there is delay of about
22 days in taking out present notice of motion. They assigned
reason of non availability of advocate due to vacation as reason
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for not filing written statement within stipulated period. Reason
assigned appears to be bonafide as it is clear that as soon as
advocate resumed written statement has been finalized.
Therefore, considering the amended proviso to Order VIII Rule
1 of CPC applicable to the commercial dispute, I am inclined to
allow present notice of motion subject to imposition of costs.
Hence, pass following order:
ORDER
1. Notice of Motion No.328 of 2020 is allowed and made
absolute in terms of prayer clause (a) subject to payment of
costs of Rs.1000/ (Rupees one Thousand only) to the plaintiff
on or before 27.01.2020.
Defendant No.3 is at liberty to deposit costs payable to the
plaintiff in the Court.
2. After payment of costs, defendant No.3 has to file their
written statement on next date i.e. 27.01.2020.
3. Accordingly, notice of motion is disposed off.
With consent of parties adjourned to 27.01.2020 for NM
hearing.
Judge
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