Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1012/19 in Suit 210/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1012/2019
(CNR No.MHCC010026312019)
IN
S.C. SUIT NO. 210/2018
Smt. Kanchan Ramesh Gorule ..Plaintiff
V/s.
Mr. Santuram Shamrao Kalvekatte(Balu) ..Defendant
Appearance:
Adv. Mr. Sushil Sharma for plaintiff.
Adv. Ms. Renuka Kaveria for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 7.12.2019.
COMMON ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of Mr. Santuram S. Kalvekatte. I have also perused affidavit in reply
filed on behalf of the plaintiff duly verified by the plaintiff Smt.
Kanchan Gorule.
2. I have heard oral submissions of Ld. Counsels for both
sides.
3. It is submitted on behalf of the defendant that, there has
been delay in filing WS by the defendant in the present case. The
defendant had put his appearance in the case through his advocate on
4.6.2018 by filing V.P and matter was adjourned on 27.8.2018 for filing
WS by the defendant.
4. It is submitted that, in the meanwhile, through cousin sister
of defendant– Mrs. Naguli Bhogulkar, the defendant had tried to settled
the matter amicably with the plaintiff and there were efforts on his part
for compromise. It is submitted that, initially, the plaintiff was ready to
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settle the matter but suddenly the plaintiff had turned down the
proposal of compromise by the end of September 2018. Therefore, the
defendant contacted his advocate in the second week of October
regarding filing of the WS and gave instruction to prepare WS.
Accordingly, WS was prepared finally by advocate in the first week of
November. Thereafter there was Diwali Vacation. Therefore, WS could
not be filed in time. Under the above circumstances, there has been
delay of about 175 days in filing the WS, which is not deliberate or
intentional in view of circumstances explained above. The defendant is
entitled to be given an opportunity by condoning the delay and
permission to file WS on record, so as to enable him to defend his case.
5. Per contra, Ld.Counsel for the plaintiff has strongly opposed
the Motion and relied on the affidavit in reply and submitted that, the
defendant is seeking condonation of delay beyond statutory period of
90 days. As per amended provisions of Order VIII Rule 1A of CPC, the
court has no power to condone the delay beyond the period of 90 days.
Under the above circumstances, the Motion is liable to be dismissed
with costs.
6. It is further submitted by Ld. Counsel for the plaintiff that,
the defendant has appeared in the case through advocate by filing VP
on 4.6.2018. Thereafter, matter was adjourned for filing WS on
27.8.2018. The plaintiff has denied that, there was proposal of
settlement or compromise between her and the defendant and
therefore, time was consumed in the said compromise talks and that has
resulted into the delay. On the contrary, it is submitted that, it was the
plaintiff who had approached the cousin sister of the defendant for
settlement. Hence, it is submitted that, there is no substance in the
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Motion and hence, it is liable to be dismissed.
7. I have gone through the Motion and supporting affidavit as
well as affidavit in reply and taken in to consideration oral submissions
made by Ld. Counsels for both sides. It is clear from the record that,
there has been substantial delay in filing the WS by the defendant for
the reasons stated in the Motion and supporting affidavit. However, as
per settled legal position, this Court has discretionary powers to
condone the delay, subject to suitable costs. Therefore, I am of the view
that, the delay of 175 days can be condoned in the interest of justice.
Hence, I proceed to pass following order :
ORDER
Notice of Motion No.1012/2019 is hereby allowed and
made absolute in following terms:
1. Delay of 175 days shall stand condoned on the defendant
paying costs of Rs. 2,000/ to the plaintiff/ depositing the
same within two weeks from today in the Court.
2. If the costs are paid/deposited, as directed above, WS filed
by the defendant shall be taken on record.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:7.12.2019 Gr. Bombay (C.R. 03)
Dictated on :7.12.2019
Typed on : 7.12.2019
Signed by HHJ on : 9.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 10.12.19
TIME: 11.26 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 7.12.19
Judgment/ order signed by P.O on 9.12.19
Judgment/ order uploaded on 10.12.19
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