Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.536 OF 2020
IN
COMMERCIAL SUIT NO.135 OF 2019
Mr. Mir Osman ali ] ...Applicant/
Original defendant
IN THE MATTER BETWEEN
M/s. Chetna Book Depot ] … Plaintiff
Vs.
1. Mr. Mir Osman ali ] ... Defendants
Appearances :
Mr. Sudhakar Lakhani, Ld. Adv. for plaintiff.
Ms. Khushbu Pathak, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 18th February, 2020
ORAL ORDER
1. Defendant took out this Notice of Motion for condonation
of delay in filing written statement and to permit defendant to file
written statement on record.
MHCC01-005721-2019
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of the plaintiff. Heard both sides.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing written
statement can be condoned?
In the affirmative.
2. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the defendant that plaintiff
served with writ of summons to the defendant alongwith plaint on
12.10.2019. On instructions of defendant Advocate appeared on
04.11.2019. Advocate of defendant raised objection that copy of the
plaint is not served alongwith writ of summons to the defendant. He
requested plaintiff advocate to provide copy of the plaint. Later on
defendant advocate came to know that copy of the plaint is also served
alongwith writ of summons to the defendant. Therefore, there is delay
of 63 days in filing written statement. The delay be condoned.
5. In brief, it is contention of the plaintiff that copy of the
plaint was served to the defendant alongwith writ of summons. All the
other contentions are denied and lastly prayed to dismiss the Notice of
Motion with costs.
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6. As per Order 8 Rule 1 of Code of Civil Procedure
defendant has to file written statement within 30 days from the date of
service of summons. As per the proviso of Order 8 Rule 1 where the
defendant fails to file the written statement within the said period of
thirty days, defendant can be permitted to file written statement within
90 days, if defendant makes out grounds for delay in filing written
statement. In view of Rule 9 and 10 of Code of Civil Procedure the
proviso of Order 8 Rule 1 is not mandatory but it is directory in nature.
7. There is amendment in Code of Civil Procedure in Order 8
Rule 1 regarding Commercial disputes. As per the amendment where
the defendant fails to file the written statement within the period of 30
days from the date of service of writ of summons then defendant shall
be allowed to file written statement on such other day, as the Court
may be specified for the reasons to be recorded in writing and on
payment of such costs, but defendant shall not be permitted to file
written statement later on than 120 days from the date of service of
summons. After expiry of 120 days from the date of service of
summons, the defendant shall forfeit the right to file the written
statement and the Court shall not allowed the written statement to be
taken on record. The said amendment is with effect from 23.10.2015.
8. The object of the Commercial Court Act, 2015 is early
resolution of Commercial disputes. The Learned Advocate appeared for
defendant submitted that the written statement is not ready. It is also
prayed in the Notice of Motion that two weeks time be given to file
written statement from the date of order. Admittedly, the copy of the
plaint was with defendant since 12.10.2019. Hence considering the
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facts and circumstances to decide the suit on merit defendant can be
permitted to file written statement subject to some costs. Hence I record
my findings
Hence I record my findings to point No.1 in the affirmative and point
No.2 Notice of Motion is allowed as per final order. Hence following
order:
ORDER
Notice of Motion No.536/2020 is hereby allowed as under :
1. Delay in filing Written Statement is hereby condoned subject to cost
of Rs.1,000/ (Rs. One Thousand only).
2. Time granted till next date to deposit the said cost in the court or it
be given to the plaintiff and to file Written Statement.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 18/02/2020 City Civil Court, Gr. MUMBAI
Dictated on : 18/02/2020
Transcribed on : 20/02/2020
Signed on : 20/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.02.2020 at 03.17 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 18.02.2020
Judgment/order signed by P.O. on 20.02.2020
Judgment/order uploaded on 28.02.2020
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