Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No. 478-2020 in L C SU No. 4223-2007
MHCC010012212020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 478 OF 2020
in
L C SUIT NO. 4223 OF 2007
Shri Mohammed Shakeel Qureshi ...Plaintiff
Versus
MCGM .... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 29th NOVEMBER, 2021.
Appearance:
-
Smt. Thakkar; Ld Advocate for plaintiff.
Smt. Vyavahare; Ld Advocate for defendant/MCGM.
ORAL ORDER
1) Defendant has taken out this Notice of Motion for condonation
of delay in filing written statement and permitting defendant to file its
written statement on record.
2) Perused the notice of motion, affidavit in support of NM, plaint
and documents annexed with the plaint, reply of plaintiff. Heard Ld
Advocate for defendant and Ld Advocate for plaintiff.
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2 NM No. 478-2020 in L C SU No. 4223-2007
3) Ld Advocate for defendant argued that defendant is a public
body and is having heavy work load. Because of shortage of staff, heavy
workload, and transfer of officers of the defendants as well as transfer of
Advocate/Asst Law Officers and as papers were not traceable, defendant
was not able to file the written statement within time. The delay is not
intentional. The written statement of the defendant is necessary for
deciding the matter in issue. Defendant is having good defence on merit.
Therefore, Ld Advocate for defendant prayed that notice of motion be made
absolute.
4) On the other hand Ld Advocate for plaintiff vehemently argued
that onus is upon the defendant to plead and satisfactorily demonstrate
valid reason for not filing written statement within 30 days. In the present
matter from the reasons given by the defendant it appears that there is
gross negligence on the part of defendant. Therefore there is no sufficient
cause for condonation of delay in filing written statement. Ld Advocate for
plaintiff submitted that notice of motion be dismissed.
5) Ld Advocate for plaintiff kept reliance on the following
judgments:-
1) Atocom Technologies Ltd vs Y.A. Chunawala & Co, 2019 (2) MhLJ 26;
2) Vasani Vithal Gawand vs Shantaram Tukaram Gawand; 2016(2) ALL MR
235.
Court has gone through the observations therein.
6) From the perusal of the plaint it appears that plaintiff filed the
present suit for declaration that the notice issued u/s. 351 of MMC Act dtd.
5/11/2007 and order dtd.1/12/2007 passed in pursuance of said notice is
illegal, improper, malafide and bad in law. From the record it appears that
the suit was instituted in the year 2007. The perusal of roznama dtd.
29/7/2019 reveals that plaintiff witness was cross examined by the
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3 NM No. 478-2020 in L C SU No. 4223-2007
defendant and thereafter the matter was adjourned for the evidence of the
defendant and on 20/1/2020 defendant has taken out present notice of
motion. In the case of Atcom Technologies Ltd vs Y.A. Chunawala & Co &
Ors cited supra the Hon’ble Apex Court observed that, “onus is upon the
defendant of a higher degrees to plead and satisfactorily demonstrate a
valid reason for not filing the written statement within 30 days and also
observed that in number of cases Hon’ble Apex Court has mandated that
time can be extended only in exceptionally hard cases”.
7) Therefore, in the present matter it was necessary for the
defendant to plead and demonstrate a valid reason for not filing the written
statement within 30 days. The defendant/MCGM is a corporation. However,
in the present matter there is delay of more than 12 years. The reasons
given for delay in filing the written statement are of general nature and
does not appear to be beyond control of the defendant. Moreover, from the
reasons stated for non filing of written statement within time, it appears
that the reason is not adequate and enough. From the matter on record it
appears that defendant not acted deligently or remained inactive for several
years. There is inordinate delay also. As such there appear no sufficient
cause for condonation of delay and the present matter does not come within
the purview of exceptionally hard case. Therefore, in view of the
observations of the Hon’ble Apex Court in the case of Atcom Technologies
Ltd vs Y.A. Chunawala Co & Ors cited supra and above discussion the notice
of motion appears to be devoid of merit.
8) Considering the matter on record and discussion Court hold
that the defendant failed to plead and satisfactorily demonstrate a valid
reason for not filing written statement within 30 days and no sufficient and
exceptional cause for condonation of delay is demonstrated by the
defendant. Therefore, the notice of motion is liable to be dismissed. Hence,
Court proceeds to pass following order:-
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4 NM No. 478-2020 in L C SU No. 4223-2007
ORDER
1) Notice of Motion No.478/2020 is dismissed.
2) Notice of Motion No. 478/2020 is disposed of accordingly.
Date: 29/11/2021. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & typed on : 29/11/2021.
Checked on : 29/11/2021.
Signed by HHJ on : 29/11/2021.
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5 NM No. 478-2020 in L C SU No. 4223-2007
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/12/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
29/11/2021
JUDGMENT/ORDER signed by P.O.
on
29/11/2021
JUDGMENT/ORDER uploaded on 02/12/2021
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