Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M. No.437/20 (SC No.175/16)
MHCC010010742020
Presented on : 18/01/2020
Registered on : 18/01/2020
Decided on : 29/07/2024
Duration : 4 Y 6 M 13 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.437 OF 2020
IN
SHORT CAUSE SUIT NO. 175 OF 2016
Cornelian Properties Private Limited ... Plaintiff
- Versus -
Mr. Sudeep Mahendra Shah and Ors. … Defendants
CORAM : HIS HONOUR JUDGE
SHRI. PRASHANT C. KALE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 29th July, 2024.
Appearance :-
Mr. Amogh Karandikar, advocate for Plaintiff.
Mr. Vandit Joshi i/b. Tushar Borade, advocate for Defendant No.1
and 2
O R D E R
By this notice of motion defendant No.1 and 2 have
prayed for condoning delay of 1343 days in filing written
statement on record. Perused affidavit in support and the suit
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N/M. No.437/20 (SC No.175/16)
proceeding. Heard Ld. Advocate for defendant Nos.1 and 2 and Ld.
Advocate for the plaintiff.
2. It is submitted by defendant Nos. 1 and 2 on affidavit
that writ of summons was served upon them on or about
22.12.2015 and period of 90 days expired on 22.03.2016. There is
delay of 1343 days in filing written statement. Defendants are
coming with the case that they were contesting notice of motion
No. 214/2016 and in that process time was consumed. The
advocate representing these defendants on account of various per-
commitments informed them in the month of January, 2019 that,
he would no longer be able to represent them. These defendants
engaged the present advocate in January, 2019. Defendants were
not aware as to whether their earlier advocate had filed written
statement. On account of the acts of omission and commission on
the part of the plaintiff, defendant No.1 has practically stopped his
business. Defendant No.1 wSas always worried about the safety of
his family as plaintiff and their members have forcibly broken the
wall of the lift and had locked his family members. In the
premises, defendants have genuine and bonafide reasons and
circumstances for not filing written statement. Delay in filing
written statement was unintentional and inadvertent. If written
statement is not taken on record, grave loss and/or prejudice
would be caused to defendants which cannot be compensated in
terms of money. Hence, by condoning delay, written statement of
defendants be taken on record.
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N/M. No.437/20 (SC No.175/16)
3. The plaintiff has filed reply and opposed the notice of
motion. Plaintiff has denied all the contentions made by defendant
Nos. 1 and 2 in their notice of motion. It is submitted by the
plaintiff that reason given by defendants are not sufficient and
having no relevance for condonation of delay. He further
submitted that the application is devoid of merits. Thus, prayed for
dismissal of notice of motion with heavy costs.
4. Heard Ld. Advocate for defendant Nos. 1 and 2 and Ld.
Advocate for plaintiff. The instant suit is of the year 2016 and as
pointed out by the parties, three notice of motions are pending for
hearing including present notice of motion. Ld. Advocate for the
plaintiff submitted that contentions of defendants Nos. 1 and 2 in
the instant notice of motion are not tenable and in fact there are
no sufficient grounds for condoning delay. At the same time, Ld.
Advocate for defendant Nos. 1 and 2 submitted that litigation
between the parties travelled upto the Hon’ble High Court and the
notice of motion bearing No. 214/2016 is contested by the parties.
It is not the case that defendant Nos. 1 and 2 are absent in the suit
and now after lapse of considerable period praying for condoning
delay.
5. After going through rival affidavits and the record, the
contentions of defendants about contest in notice of motion No.
214/2016 is apparent. Moreover, at this stage Ld. advocate for the
plaintiff submitted that due to defendants delay is caused and
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N/M. No.437/20 (SC No.175/16)
written statement may be taken on record by imposing costs on
defendants. In such circumstances, having regard to the record and
the reasons, defendant Nos. 1 and 2 have sufficiently brought on
record that the delay in filing written statement is not deliberate
and intentional. However, facts remains that there is delay and
defendants are responsible for that. For the delay caused, the
plaintiff can be compensated in terms of costs. For proper
adjudication of the dispute, the written statement of the defendant
Nos.1 and 2 is necessary on record. Accordingly, I pass following
order :-
O R D E R
1. Notice of Motion No.437/2020 in Suit No.175/2016 is
allowed subject to payment of cost of Rs.5,000/- to the
plaintiff.
2. On payment of cost of Rs.5,000/- by defendant No. 1
and 2 to the plaintiff written statement be taken on
record.
3. Proceeding of Notice of Motion No.437/2020 in Suit
No.175/2016 is closed.
Date : 29/07/2024. (Prashant C. Kale )
Ad-hoc Judge
City Civil Court, Gr. Bombay.
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N/M. No.437/20 (SC No.175/16)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.07.2024 at 5.05 pm ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. Prashant C. Kale (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
29/07/2024
JUDGMENT/ORDER signed by
P.O.on
30/07/2024
JUDGMENT/ORDER uploaded on 30/07/2024
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