Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 65118 SUIT 111917 1
CNR NO. MHCC0100024772018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.651 of 2018
IN
S.C.SUIT NO.1119 of 2017
Fortune Sea Carriers (P.)Ltd. .. .. Plaintiff
Versus
Viswaat Chemicals Ltd.and Ors. ...Defendants
Shri.Adhyanta for Defendant No.1,2 and 5.
Shri. A.Z.Mukhtiyar advocate for the Plaintiff.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Dist.Judge
CR No. : 32
Dated : 3rd July 2018
ORDER
1. Defendant No.1,2 and 5 taken out this notice of motion for
condonation of delay of 9 months in filing the written statement.
2. Writ of summons on defendant No.1 company was served on
12/05/2017. Defendant No.2 and 5 were served on 13/05/2017.
Defendant No.3 is retired from the defendant No.1 company on
31/05/2017 and defendant No.4 is resigned from the service of
defendant No.1 company on 30/10/2014, therefore, defendant No.3
and 4 have no concern with the defendant company. The defendant
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company shifted his office in February 2017 at Eco Star, 909 and 910,
Vishweshwar Nagar, Goregaon(E), Mumbai63. Due to the shifting,
company required some time to find out the papers, as papers were
mix up with some other files. After search the papers they forwarded
the copies of the documents to their advocate to prepare their written
statement. Now the written statement of the defendant is ready but
they could not file it on record as there is a delay in filing the written
statement. The delay is not intentional, hence,prays that delay be
condoned and defendant be allowed to file their written statement on
record.
3. By filing reply plaintiffs strongly opposed this notice of motion.
Plaintiffs have denied the contention in toto. Delay is not explained
properly. Grounds are not sufficient to condone delay, hence, plaintiff
prays that motion be dismissed with costs.
4. Before entering into actual merit, let me coat the provision of
Order 8 Rule 1 of Civil Procedure code, this provision is procedural and
directory in nature. Basic object of incorporation of order 8 Rule 1 is to
curb mischief laid by unscrupulous litigants who caused delay in
disposal of cases. Departure from time schedule is permissible in cases
where the circumstances are beyond the control of parties and in case
when it is required to prevent injustice to the other side. Reliance in
that regard can be placed on the law laid down in case of Sambhaji &
others Vs. Gangabai and Others ((2008) 17 SCC 117) and in case of
State of Goa and others Versus H.B.Singh and company ((2012)(4)
ALL MR 750). By keeping well in mind this basic requirement let me
turn towards the factual aspect.
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5. It is the contention of the defendant, due to the shifting of the
office of defendant company they could not file their written statement.
However, this circumstances cannot be said to be exceptional
circumstances, hence, on that count defendants are not entitled for
condonation of delay.
6. Rules of procedure are made to advance cause of justice. Equity
and substantial cause of justice always demands opportunity, hence,
with a view to decide real point in controversy once for all on merit and
with a view to avoid multiplicity of delay required to be condoned.
However,considering the negligence at the hands of defendants cost is
required to be imposed, hence, I pass following order.
ORDER
1. Notice of Motion No.651/2019 is made absolute in terms of prayer
clause (a) to (c) subject to cost of Rs.5000/ by defendant No.1 ,2
and 5 collectively to plaintiff on or before next date.
2. After payment of cost permission is granted to the defendant for
filing their written statement.
3. The defendants are directed to file their written statement on next
date that too by payment of costs.
Date : 03/07/2018 (Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 03/07/2018
Signed by HHJ on : 03/07/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/07/2018 at ( 4.15p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of
JUDGMENT/ORDER
03/07/2018
JUDGMENT/ORDER signed by P.O.on 03/07/2018
JUDGMENT/ ORDER uploaded on 06/07/2018
.
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