Final Order 1

Order Details: Notice of Motion
Pdf Text: .. 1.. NM No. 967/2020 in SU No. 2053/2019
MHCC010026282020
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.967 of 2020.
IN
S. C. SUIT NO.2053 of 2019
Mr. Bharatchandra J. Thakkar.
……Defendant/Applicant
In the matter of
Mr. Zubin Jal Daruwala …..Plaintiff.
V/s.
Mr. Bharatchandra J. Thakkar. ......Defendant.
Appearances :
Ld. Adv Mane for plaintiff.
Ld. Adv Gayatri Sharma for defendant.
Coram : Shri. S. B. Pawar,
Judge, CR No.59
Date : 05th April, 2023
ORDER
Defendant has taken out the Notice of Motion with a prayer
to condone delay of 145 days in filing written statement and to take on
record his written statement.
2. Perused the Notice of Motion, supporting affidavit and
-- 1 of 4 --
.. 2.. NM No. 967/2020 in SU No. 2053/2019
affidavit in reply filed by the plaintiff. Heard Ld. Advocates for both the
parties.
3. It is the case of the defendant that plaintiff served the writ
of summons on 24.07.2019 on Mr. Jagdish Thakkar working in his
office. At that time defendant was traveling for business purpose. He
was informed about service of writ of summons in the month of August.
Thereafter, he contacted his Advocate who sought inspection of
documents referred to and relied upon plaintiff in the plaint. The
inspection was not given. The suit transaction is of the year of 2010.
Therefore, it took considerable time to collect the documents.
Therefore, there is delay in the taking out Notice of Motion and he
prays that the same be condoned.
4. Plaintiff contested the Notice of Motion by contending that
no documents are produced on record to show that defendant was
traveling for business purpose at the relevant time. The entire copy of
the plaint alongwith all the annexures of documents were served upon
defendant. Therefore, there was no question of taking inspection of
documents. The defendant failed and neglected to file written
statement within time. The delay is not explained and therefore Notice
of Motion is liable to be dismissed.
5. Record shows that Ld. Advocate for defendant filed
appearance on 04.11.2019. It is admitted position that defendant is
served with writ of summons on 24.07.2019. On 04.11.2019 and
17.12.2019, time was granted to defendant to file written statement
-- 2 of 4 --
.. 3.. NM No. 967/2020 in SU No. 2053/2019
and ultimately on 15.01.2020 no W.S. order came to be passed against
defendant.
6. The suit is for recovery of friendly loan. Defendant has
given the explanation that as he was traveling for business purpose and
the transaction was of the year 2010, there is delay in filing written
statement. Plaintiff disputes the explanation by contending that it is not
proper. However, in view of the nature of the suit, opportunity to the
defendant to put forth his defence cannot be denied only on the ground
of delay and in the facts of the present matter, the delay can be
compensated by imposing suitable cost upon the defendant. Therefore,
for decision of suit on merit, I am inclined to allow the Notice of
Motion subject to cost. Hence, following order is passed :
ORDER
1. Notice of Motion No. 967 of 2020 is allowed subject to cost of Rs.
5000/ to be paid to the plaintiff.
2. Defendant shall comply with the order of costs within Four
weeks.
3. Notice of Motion No. 967 of 2020 is disposed of accordingly.
(S/d)
(SHRI S.B.PAWAR )
Judge
Dt.: 05.04.2023 City Civil Court, Gr. Mumbai
Dictated on : 05.04.2023
Transcribed on : 05.04.2023
Checked on : 05.04.2023
Signed On : 05.04.2023
-- 3 of 4 --
.. 4.. NM No. 967/2020 in SU No. 2053/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.04.2023 at 01.10 p.m. Mrs. Poonam.Y.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 05.04.2023
Order signed by P.O. on 05.04.2023
order uploaded on 13.04.2023
-- 4 of 4 --