Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.843 OF 2019
IN
S.C. SUIT NO.1834 OF 2019
M/s. Maxim Containers Company ] … Plaintiffs
V/s.
BDH Industries Ltd. ] ... Defendants
Appearances :-
Mr. Nagesh Pawar, Ld. Adv. for plaintiff.
Ms. K.K. Maheshwari Ld. Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 9th October, 2020
ORAL ORDER
1. Defendant took out this Notice of Motion to set aside
without written statement order dated 29.01.2019, to condone the
delay in filing written statement and to take written statement on
record.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of the plaintiff. Heard both sides.
MHCC01-002219-2019
-- 1 of 5 --
- 2 - NM 843/19 in
SC Suit 1834/19
3. Following points arise for my determination. I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether without written statement
order dated 29.1.2019 passed against
the defendants can be set aside ?
In the affirmative.
2. Whether delay in filing written
statement can be condoned?
In the affirmative.
3. What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the defendant that writ of
summons without the copy of the plaint served upon the defendant on
29.10.2018. Thereafter, matter posted on 30.10.2018. On the
application of defendant Court directed plaintiff to give copy of the
plaint to the defendant. Plaintiff provided copy of the plaint on
29.11.2018 and the matter adjourned for filing written statement on
04.01.2019. On 04.01.2019 matter adjourned on the application of the
defendant to 29.01.2019. On 29.01.2019 advocate of defendants
developed food poisoning and starting vomiting therefore, the advocate
of defendant could not remain present before the Court on 29.01.2019.
Consequently without written statement order passed on 29.01.2019.
On 29.01.2019 Court observed that 90 days over on 29.01.2019,
however, the copy of the plaint was furnished to the defendant on
29.11.2018 therefore, period of 90 days was not over on 29.01.2019.
-- 2 of 5 --
- 3 - NM 843/19 in
SC Suit 1834/19
Therefore, without written statement order dated 29.01.2019 be set
aside, delay in filing written statement, if any, be condoned and
defendant be permitted to file written statement.
5. In brief, it is contention of the plaintiff that summons
served upon defendant on 29.10.2018. On the demand of the
defendant the plaintiff gave additional copy of the plaint alongwith
documents to the defendant on 29.10.2018 in the Court. If, suppose
service is done on 29.11.2018 the defendant was required to file written
statement within 30 days i.e. on before 29.12.2018. As per Order 8
Rule 1 of the Code of Civil Procedure. There is delay in filing written
statement. There is not sufficient reason to condone the delay. Hence,
Notice of Motion be rejected.
6. As per Order 8 Rule 1 of Code of Civil Procedure the
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.
Proviso of Order 8 Rule 1 is directory in nature.
7. According to the defendant summons without copy of the
plaint served upon it on 29.10.2018. The copy of the plaint give to the
defendant on 29.11.2018. According to the plaintiff on 29.11.2018
plaintiff gave additional copy of the plaint alongwith documents to the
-- 3 of 5 --
- 4 - NM 843/19 in
SC Suit 1834/19
defendant in the Court. Therefore, I am of the opinion that the
defendant was required to file written statement within 30 days i.e. on
or before 29.12.2018 as per Order 8 Rule 1 of the Code of Civil
Procedure.
8. There is delay in filing written statement. Therefore, the
order dated 29.01.2019 proceeding without written statement against
the defendant is properly passed. Considering the reasons mentioned in
the Notice of Motion the said order can be set aside, delay in filing
written statement can be condoned and written statement of defendant
can be taken on record. Hence, I record my findings to point Nos.1 and
2 in the affirmative and point No.3 the Notice of Motion is allowed as
per final order. Hence following order:
ORDER
Notice of Motion No. 843 of 2019 in Suit No. 1834 of 2019 is allowed
as under-
1. Without Written Statement order dated 29-01-2019 is hereby set
aside.
2. Delay in filing Written Statement is hereby condoned.
3. Written Statement of defendant be read and recorded.
4. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 09/10/2020 City Civil Court, Gr. MUMBAI
Dictated on : 09/10/2020
Transcribed on : 03/11/2020
Checked on : 04/11/2020
Signed on : 06/11/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
-- 4 of 5 --
- 5 - NM 843/19 in
SC Suit 1834/19
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.11.2020 at 02.45 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 09.10.2020
Judgment/order signed by P.O. on 06.11.2020
Judgment/order uploaded on 07.11.2020
-- 5 of 5 --