Order 2

Order Details: Notice of Motion
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09.08.2024 Court Room No.31 - Commercial Court, Mumbai
Coram : Shri V. S. Hingne, Additional District Judge,
Sr. No.35
Commercial
Suit No.
100397/2023
NM 606/24
Exh.07
Haren Bhagwandas Somaiya Vs Bishmbhar Nath Varma
Adv. Ashish Gupta present for plaintiff.
Plaintiff Haren Somaiya present.
Adv. Vimal Tiwari present for defendant.
Copy of register Notice of Motion No. 100606 / 2024
filed by defendant.
Exh.07- Plaintiff filed reply to Notice of Motion No.
100606 / 2024.
Through Notice of Motion No. 100606 / 2024, defendant
is seeking condonation of delay of 87 days in filing the
Written Statement.
Perused Record.
Heard Adv. Ashish Gupta for plaintiff.
Heard Adv. Vimal Tiwari for defendant.
Perusal shows the relevant dates, as follows :
On 15.01.2022, the Suit came to be filed.
On 11.01.2024, the defendant took the Suit on board and
filed his Vakilpatra at Exh. 3. He also filed Notice of
Motion for condonation of delay. Said Notice of Motion is
accompanied with copy of Written Statement.
On 25.04.2024, the Plaintiff filed Affidavit of Service at
Exh. 6, stating that, defendant is served by way of RPAD
Summons on 12.10.2023.
It is case of defendant that, he was served with copy of
the Plaint on 16.10.2023 at his native place. Plaintiff has
filed false Suit for extorting money. Defendant was facing
financial and health issues at its native place and hence,
he could contact the lawyer at Mumbai only in January
2024. It caused delay of about 87 days in filing Written
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Statement. Said delay is not intentional. Defendant is
having strong defenses to contest the Suit. Hence, said
delay be condoned and the Written Statement be taken on
record.
Through Reply at Exh.7, plaintiff objected on the ground
that, the delay is not properly explained, there is no
documents in support of the explanations given by the
plaintiff. Notice of Motion being false, be dismissed with
costs.
Reasons
As per Record of the Suit, defendant is served on
12.10.2023.
He preferred the Notice of Motion on 11.01.2024.
Thus, there is delay of 91 days.
As per amended First Schedule / Order 5 Rule 1 (1) of the
Code of Civil Procedure provides that, defendant is
required to file Written Statement within 30 days. In case
he fails to file Written Statement, then for reasons to be
recorded in writing and on payment of such cost as deems
fit, the Court may allow him to file Written Statement, but
within 120 days from date of service.
If any party, for technical reasons, is deprived of raising
its case, then it may result in improper adjudication. That
may lead to complexity in the dispute and may also lead
to multiplicity of litigation. If that happens, then it drags
the parties into further litigation, causing serious
prejudices to them. Hence, it is always in the interest of
justice that, both contesting parties are provided sufficient
opportunities to raise their contentions and to prove their
case.
Considering above discussion, it would be proper that, the
delay is condoned and the defendant is permitted to
participate in the Suit.
In given facts and circumstances, considering claim
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amount of Rs. 4,61,184/- and duration of delay of 91
days, it would be just and proper to allow said Notice of
Motion by imposing cost of . 5	₹ ,000/-. Accordingly,
following Order is passed :
ORDER
1. Notice of Motion No. 100606 / 2024, is allowed
subject to payment of Cost of . 5,000/- ( . Five	₹ ₹
Thousand Only) to plaintiff.
2. Defendant shall pay said Cost by next date.
3. If defendant pays the Cost to plaintiff by next
date, then the delay caused to defendant, in
filing their Written Statement shall stand
condoned. Then, the Written Statement be taken
on record, forthwith.
4. If defendant fails to pay the Cost, then the Suit
shall proceed for evidence of plaintiff.
5. Parties be informed about their right to
challenge this Order and period of limitation for
it.
6. Order pronounced in Open Court.
7. Record of Notice of Motion shall be part of
main Commercial Suit No. 100397 / 2023.
Suit adjourned to 09.09.2024 for compliance.
Judge
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