Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on NM 883-2019 1 Su. No. 8735-1992
MHCC010023552019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO 883 of 2019
(CNR NO.MHCC01-002355-2019)
IN
L.C. SUIT N0.8735 OF 1992
(CNR NO.MHCC01-009269-2012)
M/s Quality Engineering Works ] ... Plaintiffs
Versus
Mukund Limited. ] ...Defendants
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Appearances:-
Ld. Adv. Mr. Nishant Shashidharan for the Plaintiff.
Ld. Adv. Mr. Pritesh Rajgaur for the defendant .
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CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 03/11/2020
O R A L O R D E R O N N O T I C E O F M O T I O N
This is Notice of Motion filed by the plaintiff against
defendant with a prayer to take written statement on record to the
counter claim of the defendant and make this Notice of Motion absolute
as prayed.
Plaintiff's case is narrated as follows :
1. It is stated that, plaintiff had filed a Suit No.1623 on 30th
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March, 1992 before the Hon’ble High Court, Bombay, for a claim of Rs.
32,00,000 alongwith 18% interest i.e. Rs.20,00,000/- for loss of profit
and Rs.12,00,00/- as costs of the plants and machinery being non-
productive and non-remunerative investments and further damages to
the tune of Rs.32,00,000/- for breach of contract.
2. It is stated that, the defendants filed their Written
Statement alongwith their Counter Claim on 3rd July, 1997 before the
Hon’ble High Court, Bombay.
3. It is stated that, Pursuant to the enforcement of the
Bombay City Civil Court (Amendment) Act, 2012, all suits and
proceedings cognizable by the City Civil Court under section 3, and
pending in the High Court stood transferred to the City Civil Court,
Bombay. Therefore, the said Suit filed by the plaintiff before the Hon’ble
High Court stood transferred to the Hon’ble City Civil Court, Bombay as
High Court Transfer Suit No. 1632 of 1992.
4. It is stated that, the defendant thereafter, filed its affidavit
of Evidence in its Counter Claim on January 17, 2019 and tendered a
copy of the same to the plaintiff. At the said date of hearing the plaintiff
submitted to this Court that the written statement to the Counter Claim
was not found in the records of this Court. It is stated that the plaintiff
submitted before this Court that the written statement was filed in the
year 1999 the affirmed copy of which was served upon the defendants
also, who holds the same in its possession. The matter was then
adjourned to March 7, 2019 for cross examination of the evidence filed
by the defendant. This Court directed the plaintiff to take steps to
reconstruct and / or prove the filing of the written statement to the
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Counter Claim.
5. It is stated that, the defendant filed its written statement
and Counter Claim on July 3, 1997 before the Hon’ble High Court,
Bombay. The plaintiff also filed its written statement to the Counter
Claim on January 4, 1999 which was signed before the associate of the
Hon’ble High Court and the same was taken on record. The signed copy
of the said written statement to the Counter Claim was duly served
upon the defendant.
6. It is stated that, the defendant has Exhibited the said
written statement to the Counter Claim as Exhibit C in its Writ Petition
No. 2136 of 2017, filed before the Hon’ble High Court, Bombay
Challenging the order passed by this Hon’ble Court on October 20,
2016. The said papers and proceedings of the Writ Petition are on
record. The aforesaid facts clearly state that the Written Statement to
the Counter Claim was filed by the plaintiff and the same is also in
knowledge and possession of the defendants.
7. When plaintiff checked the written statement to the
counter claim from records and department of both Hon’ble High Court
and Hon’ble City Civil Court, could not found the written statement.
The suit was transferred from the Hon’ble High Court to City Civil
Court. He found that there was no roznama of 27/03/1997 to
21/10/2012. He further stated that, the written statement to the
counter claim was filed by the plaintiff in the year of 1999, which there
are no records in the papers and proceedings of the Court. Since
roznama from period of five years is missing in the present matter.
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8. He acknowledges no written statement order dated
19/10/2012 passed by this court. Plaintiff is not aware of the reason
why steps not taken by Advocate M/s Govardhandas and Faujdar. The
defendant is very well aware about of the written statement of the
record which is signed on 04/01/1999, before the Associate of the
Hon’ble High Court and filed on the same date, be taken on record and
be read and recorded.
9. Per contra, Notice of Motion is strongly contested by the
defendant. Defendant submitted that, the present application is contrary
to the procedure, as laid down in the Code of Civil Procedure, 1908 and
is made by the plaintiff with the sole motive to fill in the lacuna and file
the written statement to the Counter Claim on record which otherwise
was not on record. It is further stated that, the plaintiff at this stage
cannot make such application without any valid reason. The application
of the plaintiff makes it clear that the plaintiff has failed to file the
written statement to the Counter Claim on record within the prescribed
time. The plaintiff today cannot file the written statement to the
Counter Claim on record in the manner set out in the Notice of Motion
and the same in contrary to the provision of Civil Procedure Code,
1908.
10. It is further stated that, written statement to the counter
claim of the plaintiff cannot be taken on record with the present
application as plaintiff has lost the opportunity to produce the written
statement. Plaintiff is guilty of delay and latches. The plaintiff has taken
out the present application after the trial has already commenced in the
Counter Claim. Hence, prayed for rejection.
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11. I have heard, learned Adv. Mr. Nishant Shashidharan for
the plaintiff and learned Adv. Mr. Pritesh Rajgaur for the defendant at
considerable length.
12. After hearing both sides at considerable length, following
points arise for determination and findings thereon are narrated as
follows :
SR.NO. POINTS FINDINGS
1.
Whether the Notice of Motion is tenable
and delay can be condoned? Yes
2. What order ? Allowed subject to
cost
REASONS
AS TO POINT NO. 1
13. Before come to the discussion on merit in this Notice of
Motion, I would like to focus on light on the date wise facts of the case
which reflects in the progress of the proceeding i.e. roznama.
1) Suit No. 1632 of 1992 was registered on 30.03.1992.
2) It is money suit for the recovery of 32 lacs etc.
3) Written statement filed by the defendant with Counter Claim on
03.07.1997 before Hon’ble High Court. Suit was within
jurisdiction of the Hon’ble High Court.
4) Suit was transferred to City Civil Court with transfer Suit No.
8735 of 1992.
5) Issues were framed on 03/09/2013.
6) Affidavit of Evidence of plaintiff was filed on 12/02/2014.
7) Cross examination completed on 07/12/2015.
8) On 23/12/2016 this court allowed production of additional
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documents in favour of the plaintiff.
9) This order challenged by present defendant through Writ petition
No.1136 of 2017, in which this Court order was confirmed by
Hon’ble High Court on 03/05/2017.
10) Plaintiff evidence completed on 04.10.2018.
11) Chamber Summons for amendment moved on 17/01/2019
by defendant and allowed.
12) Plaintiff took steps to amendment in cause title of written
statement of plaintiff in Counter Claim of defendant, that
time plaintiff failed to file written statement of Counter
Claim on record.
13) Defendant filed evidence in Counter Claim on 05/02/2019,
plaintiff has submitted his written statement of Counter
Claim is not found on record.
14. According to plaintiff written statement was filed in year of
1999. The affirmed copy was also served to defendant to hold
possession of same copy. According to plaintiff the written statement
was filed before Associate of Hon’ble High Court on 04/01/1999 and
same has been taken on record. Singed copy of written statement to
Counter Claim duly served on defendant it is at Exhibit ‘C’ in Writ
Petition NO. 1136 of 2017, no record regarding roznama available since
27/03/1997 to 19/10/2012, no written statement order was passed on
19/10/2012, by learned predecessor against the plaintiff, and this order
is challenged in 2019 by this Notice of Motion.
15. I would like to focus light on the Order VIII, Rule 1 of Code
of Civil Procedure, 1908.
“Written statement – The defendant shall,
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within thirty days from the date of service of
summons on him, present a written statement of his
defence:
Provided that where the defendant fails to file
the written statement within the said period of thirty
days, he shall be allowed to file the written statement
on such other day, as may be specified by the Court,
for reasons to be recorded in writing and on payment
of such costs as the Court deems fit, but which shall
not be later than one hundred twenty days from the
date of service of summons and on expiry of one
hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file
the written statement and the Court shall not allow
the written statement to be taken on record.”
Thus, filing of written statement within stipulated period is mandatory
but delay in filing must be satisfactorily demonstrate of valid reason for
not filing Written Statement within 30 days. The burden is on the
plaintiff to show that the reason for delay which is just and proper with
sufficient and justifiable reason. In the particular case it is admitted fact
that, the suit was pending before the Hon’ble High Court, since it is
inception till transferred in City Civil Court. It is also admitted fact that,
as per para 23 of affidavit in reply to this Notice of Motion by defendant
it transpires as follows:
“I say that it is true that an un-affirmed copy of
the said Written Statement to the Counter Claim was
served upon the Defendant, but the same does not
constitute filing and being taken on record by the
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Hon’ble High Court and by this Hon’ble Court.”
16. Thus, it is admitted that un-affirmed copy of written
statement to the Counter Claim was filed before the Hon’ble High Court
but it could not be taken on record and matter was transferred to the
City Civil Court. It is factual position in this matter. The delay at the
instance of plaintiff for not moving Notice of Motion immediately when
no written statement order passed by this Court on 19/10/2012. On
this point it is specifically mentioned by plaintiff that he was unaware
about why the steps was not taken by his advocate to object the said
roznama dated 19/10/2012, i.e. order of no written statement.
17. It is settled law, that lapses on part of advocate should not
cause to suffer the rights of the litigants. In this particular case onus is
upon plaintiff which is of higher degree to plead satisfactorily
demonstrate to valid reason for not taken the written statement within
30 days of record. If the written statement of the Counter Claim was
filed by the defendant in Writ Petition 1136 of 2017. Then why it should
not be record despite knowledge to the defendant. Where it can be
avoided to taken on record taking higher technical approach by this
Court. It is case where the evidence of plaintiff is closed. Evidence of
defendant is started. If the Counter Claim filed by the defendant
certainly plaintiff have right to file the Written Statement and in this
case, it is filed but in the form of un-affirmed Written Statement and
which remain to taken on record. Technically it is not the case that for
last of 7820 days delay caused by the plaintiff, only due to his fault, but
in this particular case. It was pending before the Hon’ble High Court for
years and then transferred to City Civil Court and pending for more
than seven years (19/10/2012). The copy of written statement to the
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Counter Claim filed alongwith this Notice of Motion transpires that it is
not signed by Associate on 04/01/1999, and it is not taken on record.
This position also admitted by the defendant that was written statement
to Counter Claim filed by the plaintiff.
18. Therefore, I am of the opinion that if the written statement
taken on record, certainly other side would have be right opportunity to
contest it while conducting trial.
19. The Learned advocate for plaintiff placed reliance on
following case law:
“Civil Appeal No. 1415 of 1981, decided on April
16, 1981, by Hon’ble Supreme Court, Rafiq and Anr.
Vs. Munshilal and Anr.
With due respect the facts of above case law are not
identical to the case in hand. At present the suit is before this City Civil
Court and not before Hon’ble High Court. Therefore, certainly
provisions Code of Civil Procedure, 1908, would be applicable to the
case in hand.
20. The Learned advocate for defendant placed reliance on
following case law:
“Atcom Technologies ltd. Vs. Y.A. Chunawala
and Co. in Civil Appeal No. 4266-67 of 2018, decided
on 07/05/2018 by Hon’ble Supreme Court.”
With due respect above facts of the case are not applicable
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to this case in hand.
21. Thus, after going through circumstances of case and
relevant pleadings. I am of the opinion that, party should not suffer due
to lapse on the part of the lawyer and transfers of suit from one Court to
other court with technical procedure of the litigation. The admission on
the part of defendant in para 23, itself proves that written statement
was filed on record dated 04/01/1999, but with un-affirmed copy. It
was also admitted that the copy of written statement to Counter Claim
has also served on defendant. Therefore, mere hyper technical approach
will definitely frustrate ends of justice. The written statement is very
material to meet the ends, of justice and obviously both parties would
get sufficient opportunity to constitute their claim on merit. The delay
on the part of counsel would not cause great loss to the litigant.
Definitely party should not suffer for delay on the part of their counsel.
22. This suit was pending before Hon’ble High Court in 1992
and transferred to City Civil Court subsequently due to change of
jurisdiction in 2012. These are technicalities for which parties should
not suffer. The plaintiff is seeking condonation in serious manner and
not in casual manner. However, it is crystal clear from perusal of record
that un-affirmed copy of written statement to counter claim is also filed
with copy of Writ Petition no 2136 of 2017, on record at Exhibit C by
defendant himself.
23. It is obvious from record that, noting prevented plaintiff to
from taking written statement on record. Counsel or person has thus
failed to take it on record. It is settled law by Hon’ble Supreme Court
that routine condonation and cavalier attitude suffers administration of
justice. It is obvious from record that the un-affirmed copy of written
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statement to the Counter Claim was already on record before Associate
in Hon’ble High Court. It also reveals that the copy of written statement
was also served on present defendant. It is admitted by the defendant.
24. However, taking lenient view considering genuine facts of
case as discussed supra, written statement filed by plaintiff dated
04/01/1999, be taken on record with a copy to defendant within one
week from today and further subject to payment of cost of Rs.10,000/-
to the defendant. Accordingly, I answer to the point No.1 is affirmative.
Hence, I passed the following order.
ORDER
1. The prayers of Notice of Motion (a),(b),(c) and (C1) are made
absolute.
2. The written statement dated 04/01/1999 be taken on record and
copy of written statement be given to defendant within one week
from today.
3. The delay of 7820 days be condoned subject to cost of
Rs.10,000/- (Rupees Ten thousand) to be pay by plaintiff to the
defendant.
4. N.M. No.883 of 2019 is disposed of accordingly.
(U.J.More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date : 03.11.2020
1. Dictated on : 03.11.2020
2. Transcribed on : 03.11.2020
3. Signed on : 04.11.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/11/2020 at 12:15 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 03.11.2020
Judgment/Order signed by P.O. on 04.11.2020
Judgment/Order uploaded on 05.11.2020
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