Final Order 1

Order Details: Notice of Motion
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MHCC010025792020
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO.952 OF 2020
IN
COMMERCIAL SUIT NO.459 OF 2021
Dhirajlal Jamnadas Sanghavi ]
An adult, Indian inhabitant of Mumbai, ]
Age75 yrs.Occ: Business, ]
Proprietor of D.Jamandas &Co. ]
Having its office situated at 1st floor, ]
207 Samuel Street, Masjid Bunder (W), ]
Mumbai400003 ]....Plaintiff
V/s
Shri Anup Gupta ]
An adult Indian inhabitant of Mumbai ]
Age:50 yrs. Occ: Business, ]
Proprietor of M/s. J.S international, ]
Office having its office situated at ]
2nd, Sanghvi Nagar, Aundh, ]
Pune411 067. Maharashtra ]...Defendant
Appearances:
Ld. Adv. Rajender Singh Saluja for the plaintiff.
Ld.Adv. Naseem Khan for the defendant.
CORAM : HIS HONOUR ADHOCADDL.SESSIONS
JUDGE SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 23rd September, 2021
ORDER
This notice of motion is taken out by the defendant
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requesting to condone the delay in filing written statement.
2. It is the contention of the defendant that the suit is for recovery
of amount. The suit summons have been served on the defendant on
28.01.2019. It was received by Office boy of the defendant. Later on he left
the office. In the month of August, 2019 when the defendant was carrying
out the repairs and cleaning work of the office, he got the envelope of the
summons. However, in mean time, on 30.04.2019 the suit was ordered to
proceed exparte. The defendant was suffering from high blood pressure.
He is diabetic patient. He was advised to take rest, therefore he was unable
to contact his Advocate to provide the instructions. As written statement
was ready on 11.02.2020 but there is delay, therefore, he could not file it.
With these contentions, the defendant has prayed to condone the delay and
allow him to file written statement.
3. The plaintiff by his reply at Exh.8 which is adopted his reply to
this notice of motion, resisted this notice of motion, contending that the
reasons stated in the motion are false, vague and contradictory. The reasons
are not supported with cogent evidence. The plaintiff denies the facts
regard to the acceptance of suit summons by office boy and repairing work
of defendant's office. With these contentions, the plaintiff has prayed to
dismiss the notice of motion.
4. Heard the learned Advocates for the defendants and the
plaintiff.
5. Read the notice of motion and reply filed for the same. Read
the service affidavit (Exh.05). The suit summons appears to have been
served in the month of January 2019. Even by extending time limit of 120
days, the defendant was liable to file written statement in the month of
May, 2019. The defendant is not disputing about the service of suit
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summons. By this notice of motion the defendant is seeking relief only for
condonation of delay in filing written statement.
6. In view of provisions of Order 8, Rule 1 of the Code of Civil
Procedure, if the defendant fails to file the written statement within period
of thirty days, he shall be allowed to file written statement on such other
date, 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 120 days from the date of service of summons and on expiry of
120 days from the date of service of summons, the defendant shall forfeit
the right to file written statement. In view of said provisions, 120 days time
limit is provided to the defendant for filing written statement.
7. This suit was originally filed as Short Cause Suit, but later on, it
has been transferred to this Court. Therefore, in view of provisions of
Section 15 of the Commercial Courts Act, the aforesaid proviso to Subrule
1 of Rule1 of Order5 of the Code of Civil Procedure shall not apply to such
transferred suit and in such case, the court may in its discretion prescribe
new time period within which the written statement shall be filed.
Therefore, for this suit also new time limit ought to have been prescribed
for filing the written statement. Since March, 2020 there was lockdown due
to outbreak of Covid19. This notice of motion is filed in the month of
February, 2020. Time limit for filing written statement was not prescribed
after transfer of the suit. Hence, if the defendant wants to file written
statement, permission can be granted for the same. Record shows that vide
Exh.07 before filing of this notice of motion, the defendant had applied for
setting aside the exparte order. Later on, in the prescribed format, he filed
notice of motion, therefore it can be considered. On 19.08.2019, the
defendant has applied for setting aside the exparte order and permission to
file written statement. Exparte order has been passed on 30.04.2019. As
aforesaid, as per Section 15 of the Commercial Courts Act, new time limit
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can be prescribed in suits which are transferred to the Commercial Courts.
Hence, the defendant can be allowed to file written statement. Considering
the reasons stated for the delay, the notice of motion can be allowed subject
to costs. Hence, I pass the following order.
ORDER
1. Notice of Motion No.952 of 2020 is allowed, subject to costs of
Rs.2,000/(Rupees Two Thousand Only).
2. The delay in filing written statement is condoned.
3. The costs shall be paid to the plaintiff on or before next date.
4. The order dated 30.04.2019 directing the suit to proceed exparte
is set aside.
5. After compliance of order as to payment of costs, the defendant is
allowed to file written statement on record.
6. The Notice of Motion No.952/2020 is disposed off accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 23.09.2021 Mumbai.
Dictated on :23.09.2021
Transcribed on :24.09.2021
Signed by HHJ on :28.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.09.2021 at 11.00 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
23.09.2021
Judgment/order signed by P.O. on 28.09.2021
Judgment/order uploaded on 29.09.2021
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