Final Order 1

Order Details: Chamber summons
Pdf Text: CH/S.161/2018 COUNTER CLAIM 19/2015 SUIT 1648/15 1
CNR.NO.MHCC010012912018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.161 OF 2018
IN
COUNTER CLAIM NO.19 OF 2015
IN
SUIT NO.1648 OF 2015
Bharat Satra .. .. Plaintiff
Versus
P.D.Warehousing Corporation ...Defendant
Advocate Smt.Sharmila Deshmukh for Plaintiff.
Advocate Smt.Savita Sawarkar for Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt.Judge
CR no. : 32
Dated :3rd May,2018
ORDER
1. Defendant(Original plaintiff) in counter claim has taken out this
chamber summons for setting aside ‘no w/s’ order dated 07/07/2016
with prayer for condonation of delay.
2. Defendant has filed counter claim on 04/09/2015 thereafter,
matter was adjourned for time to time for filing reply on the counter
claim. But due to pre occupation with other business matters defendant
could not give instruction to his advocate for preparation of written
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CH/S.161/2018 COUNTER CLAIM 19/2015 SUIT 1648/15 2
statement. In October,2017 he had discharged his earlier advocate and
engaged present advocate. His advocate attended court on 10/10/2017
and filed his appearance that time, he came to no that 'no w/s.'order
has been passed against him. Immediately this chamber summons has
been taken out. Defendant prays that chamber summons be made
absolute in terms of prayer clause.
3. Plaintiff in the counter claim filed the reply. There is gross delay
on the part of defendant for not filing reply to the counter claim 'no
sufficient' ground has been given by defendant for condonation of
delay. Other partners of the defendant could have given instruction to
file written statement ion the counter claim. However, defendant
chosen not to file their written statement. Hence, no written statement
order be filed against defendant on 07/07/2016. Reasons assigned for
condonation of delay are not satisfactory. Hence, chamber summons be
dismissed with costs.
4. Heard learned advocate Smt.Sharmila Deshmukh for Plaintiff and
advocate Smt.Savita Sawarkar for Defendant.
5. The suit is for recovery of money and the defendant claims set off
against the plaintiff’s demand. Plaintiff may present written statement
containing he particulars of the debt sought to be set off. The written
statement shall have the same effect as a plaint in a cross suit, so as to
unable the court to pronounce a final judgment in respect of both the
original claim and of the set off. The rules relating to written statement
by a defendant applied to written statement in answer to a claim of set
off.
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CH/S.161/2018 COUNTER CLAIM 19/2015 SUIT 1648/15 3
6. The purpose of providing a time schedule for filing written
statement under Order 8 Rule 1 is to expedite and not scuttle the
hearing. The provisions spells a disability on the defendant. It does not
impose on embargo on power of court to extend the time. The provision
being in the domain of procedural law it has to be held directory and
not mandatory.
7. Considering the reason assigned for condonation of delay are
found to be ‘sufficient cause’ for not filing the written statement within
time, hence, delay is required to be condoned. If the delay in condoned
by imposing cost of Rs.2000/ be paid to the original defendant then
that will be justifiable, hence, proceed to pass following order.
ORDER
1.Chamber Summons No.161/2018 is made absolute in terms of
prayer clause subject to cost of Rs.2000/ be paid to the original
defendant.
2. After compliance written statement on the counter claim be taken
on record.
Date : 03/05/2018 (Pushpa N. Rao)
Ad hoc Asstt.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 03/05/2018
Signed by HHJ on : 03/05/2018
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CH/S.161/2018 COUNTER CLAIM 19/2015 SUIT 1648/15 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/05/2018 at (2.25 p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
03/05/2018
JUDGMENT/ORDER signed by P.O.on 03/05/2018
JUDGMENT/ ORDER uploaded on 04/05/2018
.
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