Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.706 OF 2019
IN
S.C. SUIT NO.2367 OF 2016
Mr. Murali Krishna Simhadri & Ors. ] … Applicants
IN THE MATTER BETWEEN
Corporation Bank ] … Plaintiff
V/s.
Mr. Murali Krishna Simhadri & Ors. ] ... Defendants
Appearances :
Ms. Vaishali Kurle, Ld. Adv. for plaintiff.
Mr. Jindagi Shah, Ld. Adv. for defendant No.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 17th January, 2020
ORAL ORDER
1. Defendant Nos.1 and 2 took out this Notice of Motion for
condonation of delay in filing their written statements and to set aside
Order dated 28.06.2017 proceeding without written statement against
the defendant Nos.1 and 2 and to take written statement of defendant
Nos.1 and 2 on record.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and say of the plaintiff. Heard both sides.
MHCC01-001810-2019
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3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether Order dated 28.6.2017
proceeding without written statement
against both the defendants can be set
aside?
In the affirmative.
2. Whether delay in filing written
statement of both defendants can be
condoned?
In the affirmative.
3. Whether both defendants can be
permitted to file written statement on
record?
In the affirmative.
4. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 4.
4. In brief, it is contention of defendants that after various
inquiry and searching through the official website of this Court, it came
to know that this suit was listed on 27.04.2017. On that day when the
matter was called out, Counsel appeared on behalf of the defendant
Nos.1 and 2 and waived service of writ of summons. She filed
Vakalatnama on behalf of the defendant No.1 and craved leave to file
the vakalatnama of defendant No.2. She also brought to the notice of
the Court at the relevant time that copy of the plaint had not served
upon the defendant Nos.1 and 2 and therefore, defendants are not in
position to file their written statement.
5. The then Presiding Officer directed plaintiff to furnish copy
of the plaint to the defendant Nos.1 and 2 and matter adjourned on
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5.6.2017. Matter was called out on 5.6.2017. At that time Counsel of
both the defendants appeared and filed Vakalatnama on behalf of the
defendant No.2. She also stated before the Then Presiding Officer of
the Court that plaint was only served upon defendant on 04.06.2017
and therefore, it was not possible for her to prepare and file written
statement in a short period.
6. On 28.06.2017 Counsel appearing for defendants appeared
and stated before the Then Presiding Officer of the Court that she had
not got necessary instructions from the client to prepare and file written
statement. The then Presiding Officer has passed Order to proceed
without written statement against the defendants on 28.06.2017.
Therefore, the said Order be set aside and defendants be permitted to
file written statement on record.
7. It appears from the overleaf page of this Notice of Motion
that Advocate of plaintiff filed reply in handwriting on 04.01.2020 that
the plaintiff has objection.
8. 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.
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9. It is contention of both the defendants that their Advocate
waived the service of writ of summons on 27.04.2017. Advocate of
defendant No.2 filed Vakalatnama on 05.06.2017. Waiving writ of
summons is as good as service of writ of summons. There is delay in
filing written statement. Considering the reasons mentioned in the
Notice of Motion, I am of the opinion that order of proceeding without
written statement against both the defendants can be set aside and both
defendants can be permitted to file written statement on record by
condonation of delay. Written statement is not annexed with the Notice
of Motion. Hence, I record my findings to point Nos.1, 2 ,3 in the
affirmative and point No.4 the Notice of Motion is allowed as per final
order. Hence following order:
ORDER
Notice of Motion No.706/19 is allowed as under :
1. Order dt. 28/06/2017 proceeding without written statement
against both the defendant is hereby set aside.
2. Delay in filing written statement of both the defendants is
condoned.
3. Both the defendants are permitted to file written statement on
record till next date.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 17/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 17/01/2020
Transcribed on : 20/01/2020
Signed on : 21/01/2020
( 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”
21.01.2020 at 03.45 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 17.01.2020
Judgment/order signed by P.O. on 21.01.2020
Judgment/order uploaded on 21.01.2020
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