Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.527 OF 2018
IN
SUIT NO.4264 of 2011
Heranba Industries Limited ...Plaintiff
V/s.
Mr.Augustine Joseph ...Defendant
Appearances:
Ld.Adv.Mr.O.S. Kutty for plaintiff.
Ld.Adv.Jamshed Ansari for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.14)
DATED : 22nd March,2018
ORDER
By way of this notice of motion defendant prayed for condonation
of delay of 804 days in filing written statement to Summary Suit
No.4264 of 2011.
2. In supporting affidavit of one Mr.Augustine Joseph, the sole
proprietor of M/s. Plantation Trades, submitted that this suit was filed
before Hon.High Court bearing Summary Suit No.2186 of 2011 on
08.08.2011 and same was renumbered as suit No.4264 of 2011 being
transferred to this Court. Plaintiff has filed summons for judgment on
02.05.2013 and defendant has filed reply to it and after hearing both
the sides said summons for judgment came to be decreed on
24.10.2015 with directions to deposit principal sum Rs.8,52,834/. The
claim towards the interest @ 18% Rs.3,63,372/ was transferred to the
list of commercial clause and defendant was permitted to file written
MHCC01-002036-2018
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statement within 30 days. Defendant was not aware about this order as
it was not dictated in open court and when they search for status, there
they came to know that order was passed. Therefore, he was under
impression that date for filing written statement within 30 days would
run from the date of order signed i.e 01.12.2015.
3. Defendant submitted that he is residing Kerala. Due to distance
factor between his Advocate from Mumbai to Kerala happened to be the
reasons for lack of communication and there is delay in drafting,
finalizing the written statement to that effect. In such circumstances,
delay needs to be occurred of 804 days in filing written statement and
he be permitted to put forth his case in this matter. Otherwise he will
suffer serious prejudice to contest the case.
4. Learned Advocate appearing for plaintiff Mr.O.S.Kutty initially
submitted that he has no objection to allow notice of motion. On
06.03.2018 they filed written reply to notice of motion and objected the
same. They submitted that reasons put forth has no force at all to be
considered as valid grounds to condone the delay when this plaintiff has
taken much care to inform defendant by way of various notices about
pendency of the suit about years passed and the compliance to be made
by them. Therefore, defendant is fully aware about compliance to be
made within 30 days after payment of the amount which they
intentionally failed. On one or other ground he deliberately avoided the
payment and therefore, question of exercising the discretion of this
court to condone the delay does not arise. In such circumstances, it is
not permissible and therefore, notice of motion needs to be dismissed
and if delay is condone heavy costs be saddled upon them.
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NM 527/2018 .. 3 .. Suit No.4264/2011
5. Heard learned Advocate Jamshed Ansari for defendant and
Advocate Mr.O.S. Kutty for plaintiff at length. Perused submissions of
both the sides.
6. The order of this Court in Summons for Judgment dt.24.10.2015
is brought to the notice of this defendant by plaintiff by issuing various
letters delivered to the counsel as well as defendant acknowledged on
30.10.2015, 01.12.2015, 23.02.2015, 28.06.2016, 29.08.2016 and
01.02.2018. Plaintiff's counsel has taken pain to inform defendant
about various dates and status of the matter. The letters were duly
served upon defendant and his counsel appearing for defendant.
Therefore, question of having no knowledge about the order, as the
ground placed by defendant as bonafide reason to show lack of
knowledge of the order, cannot be said to be valid and proper ground.
No doubt defendant is residing at Kerala and there may be lack of
communication between him and counsel, but when the suit is filed
defendant is within full knowledge about the suit and even before
Hon.High Court the question of lack of knowledge cannot be said to be
ground to be considered as a valid ground to condone the delay. As
learned counsel for plaintiff categorically submitted that to avoid
further delay they have no objection to proceed with the suit by
allowing notice of motion, but even such laxity is allowed to go on
further to avoid noncompliance of the order and even withholding the
payment will definitely not only cause loss to plaintiff, but even
prejudice to their right. But plaintiff is fair enough to inform defendant
about proceedings, status of matter and order passed. Therefore, this
force me to hold defendant liable to pay costs of Rs.25,000/ to plaintiff
as condition precedent for condonation of delay to permit them to file
written statement on record. The said order needs to be complied on or
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before 26.04.2018 and noncompliance of the same the right granted by
this Court to defendant to file written statement forfeited forever. The
delay of 804 days near about 3 years is quite reasonable delay and
therefore, generosity shown by plaintiff towards defendant force me to
saddled costs of Rs.25,000/ upon defendant as condition precedent.
With these observations notice of motion is made absolute with
following order :
O R D E R
1. Notice of Motion No.527 of 2016 is made absolute.
2. Defendant is permitted to file written statement on record
by condoning delay of 804 days subject to payment of
costs of Rs.25,000/ to plaintiff as condition precedent on
or before 26.04.2018.
3. Noncompliance of the order will forfeit right of
defendant to contest the suit forever.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.14)
Dt.:22/03/2018 City Civil Court, Gr. Mumbai
Dictated on : 22.03.2018
Transcribed on :
Signed on :
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27.03.2018 at 3.02 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.14)
Date of pronouncement of judgment/order 22.03.2018
Judgment/order signed by P.O. on 22.03.2018
Judgment/order uploaded on 27.03.2018
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