Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 452 OF 2018
IN
L.C. SUIT NO. 6122 OF 2006
Mr. Constance Rodrigues and Anr. .. Plaintiff
Versus
Mrs. Neelum Guha and Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 11th December, 2018
Mr. Hasan Khan, ld. adv. for plaintiff.
Mr. Sayyad Bukhari for defendant no. 4.
Ms. Hajare, ld. adv. for defendant no.5/BMC.
O R D E R
1. This N/m is taken out by defendant no. 4 for condoing
alleged three years delay caused for filing written statement on behalf
of said defendant. Mr. Naushad Hamavati, authorised representative
of defendant no. 4 has filed his affidavit in support of N/m contending
that delay caused in filing written statement is unintentional. It is
further contended that suit came to be transferred from Hon'ble High
Court to this Court and defendant no. 4 came to know about such
proceeding in the year 2017. Immediately defendant no. 4 appointed
advocate to defend the suit. Defendant no. 4 has filed vakalatnama on
02.11.2017 and as such delay caused for filing written statement is
necessary to be condoned.
2. Plaintiff Mr. Ryan Constance Rodrigues has filed affidavit
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in reply and resisted claim of defendant no. 4 contending that N/m is
misconceived and not maintainable. Plaintiff has contended that
authorised letter of Mr. Naushad Hamavati is not filed on record to sow
that he is authorised to file this N/m. It is alleged that this N/m is
taken out by suppressing material facts from the Court. It is further
contended that delay caused in filing N/m of three years as contended
by defendant no. 4 but it is delay of 8 years because when this suit was
pending before the Hon'ble High Court, the Hon'ble High Court passed
order on 20.04.2010 and the matter was listed in the category of
undefended suit. It is further contended that suit came to be
transferred to this Court in the year 2012 and notice came to be issued
to the parties about transfer of the suit. Any how defendant became
aware about the matter in the year 2017 but defendants have not filed
written statement even though V/k was filed in the month of November
2017. It is contended that meanwhile adjournments were sought by
defendant and thereafter this N/m is taken out by plaintiff. Therefore
it needs to be dismissed because defendant has not filed written
statement within stipulated time provided by law. It is contended that
if N/m will be allowed, plaintiff will suffer irreparable loss hence
plaintiff has prayed to dismiss the N/m.
3. Heard advocate for defendant no. 4 and plaintiff.
Advocate for defendant no. 4 produced today with list authority letter
empowering Mr. Naushad Hamavati to file this N/m. It is argued that
once the suit was dismissed and after restoration of the suit when notice
came to be issued against defendant no. 4, he came to know about this
suit and since then delay of 3 years is caused in filing written statement.
4. Plaintiff's advocate strongly argued that defendant no. 4
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has not given reasonable ground for condonation of delay. It is argued
that in the year 2010 itself suit was listed to the list of undefended suit.
Hence after restoration of the suit said position is necessary to be
considered. Plaintiff's advocate cited case between M/s Aditya Hotels
(P) Ltd and Ors Vs. Bombay Swadeshi Stores Ltd and Ors reported in
(2007) 0 Supreme (SC) 413. In said case by referring case between
Kailash Vs. Nanhku and Ors reported in 2004(4) SCC 480 it is observed
that
" Ordinarily, the time schedule prescribed by order
8 Rule 1 has to be honoured. The defendant should
be vigilant. No sooner the writ of summons is served
on him he should take steps for drafting his defence
and filing his written statement on the appointed date
of hearing without waiting for the arrival of the date
appointed in the summons for his appearance in the
Court. The extension of time sought for by the
defendant from the Court whether within 30 days or
90 days, as the case may be, should not be granted
just as a matter of routine and merely for the asking,
more so, when the period of 90 days has expired. The
extension can be only by way of an exception and for
reasons assigned by the defendant and also recorded
in writing by the Court to its satisfaction. It must be
spelled out that a departure from the time schedule
prescribed by Order 8 Rule 1 of the Code was being
allowed to be made because the circumstances were
exceptional, occasioned by reasons beyond the control
of the defendant and such extension was required in
the interest of justice, and grave injustice would be
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occasioned if the time was not extended.
The extension of time shall be only by way of
exception and for the reasons to be recorded in
writing, howsoever brief they may be, by the Court.
In no case, shall the defendant be permitted to seek
extension of time when the Court is satisfied that it is
a case of laxity or gross negligence on the part of the
defendant or his counsel. The Court may impose
costs for dual purpose: (I) to deter the defendant
from seeking any extension of time just for the asking,
and (ii) to compensate the plaintiff for delay and
inconvenience caused to him".
Lastly plaintiff's adv. submitted that if at all N/m will be allowed by the
Court considering the delay of 8 years defendant no. 4 should be
ordered to pay heavy cost to the plaintiff.
5. I have given serious consideration to the arguments
advanced at bar. Admittedly in the year 2010 itself suit was listed as
undefended suit. Thus it becomes clear that delay in filing written
statement is not of 3 years but it is of 8 years; we are at the flag end of
2018. It is true that defendant no. 4 has only mentioned in N/m that
he came to know about suit in the year 2017 after restoration of the suit
and therefore according to defendant there is delay of only 3 years. I
have already come to conclusion that delay caused in filing written
statement is of 8 years and not of 3 years. Admittedly once the suit
was dismissed for default. As such it can be said that as like defendant
no. 4 unfortunately plaintiff also was not diligent in proceeding with the
suit. In such circumstances plaintiff and defendant no. 4 are sailing in
the same boat and they cannot blame each other. However defendant
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no. 4 has mentioned in N/m that defendant no. 4 has strong defence on
merit and therefore I find that for giving fair opportunity to defendant
no. 4 to contest the suit delay caused in filing written statement can be
condoned. However, it is necessary to order defendant no. 4 to pay
cost of Rs. 8000/ to plaintiff. Hence I proceed to pass following order.
O R D E R
1. N/m No. 452/2018 is made abslute in terms of prayer
clause (a) of N/m.
2. Delay caused for filing Written Statement by defendant no. 4 is
condoned, subject to cost of Rs. 8000/ to be paid to plaintiff.
3. Defendant no. 4 is directed to deposit cost amount on or before
20.12.2018 so that suit which is pending since 2006 can proceed further
at the earliest.
(K.P.Nandedkar)
Judge,
City Civil Court,
11/12/2018 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
21/12/2018 11.20am Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 11/12/2018
Judgment/order signed by P.O on 21/12/2018
Judgment/order uploaded on 21/12/2018
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