Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1017-19 in SC. Suit no. 839-18
1 Date : 04.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1017 OF 2019
IN
S.C. SUIT NO. 839 OF 2018
(CNR NO.MHCC01 0026362019 )
Mr. Mallekkatt Joseph Abraham .. Plaintiff
Versus
Mr. Harakchand Devarshi Shah & Anr. .. Defendants
Appearances :
Adv.Noman Jafri for plaintiff present
Adv.Jitendra Tiwari for defendants present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 04.10.2019
1. The defendants filed instant Notice of Motion for
condonation of one year delay in filing Written Statement.
2. It is contended by the defendants that they have been served
with the suit summons in first week of April 2018 and accordingly
they appeared on 10.04.2018. The matter was adjourned to
16.06.2018. On 16.06.2018 when the defendants appeared in the
matter, they came to know that they have to file their Written
Statement. Therefore, the defendants on 25.06.2018 appeared
alongwith their advocate and sought time to file Written
Statement, accordingly, the matter was posted on 20.08.2018. In
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NM 1017-19 in SC. Suit no. 839-18
2 Date : 04.10.2019
the meantime the defendant no. 2 had gone out of Mumbai for
personal work and returned on 10.07.2018. Therefore, no proper
steps were taken.
3. It is further contended by the defendants that earlier
advocate on 25.06.2018 informed them to arrange papers for
preparing Written Statement. He also demanded huge fees which
was beyond their capacity. Therefore, in the third week of July,
2018, they approached present advocate who demanded the
relevant papers. It is further submitted by the defendants that
they do not have good financial condition, therefore, it was very
difficult for them to arrange fees of the advocate. Therefore, in
such circumstances, the delay of approximately one year has been
caused to file the present Notice of Motion.
4. It is contended by the defendants that they have very good
case on merit as well as on law. The delay in filing Written
Statement is not intentional and due to financial difficulty, they
could not arrange the advocate for filing the Written Statement. If
the delay is not condoned the great prejudice would be caused to
them. Hence, defendants prayed for allowing the present Notice
of Motion.
5. Per contra plaintiff opposed the application by giving say
overleaf on the ground that the defendants failed to explain delay
and also failed to mention the number of days delay in filing
Written Statement. Hence, the advocate of plaintiff submitted that
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NM 1017-19 in SC. Suit no. 839-18
3 Date : 04.10.2019
if the delay is condoned then heavy cost may be imposed.
6. Heard both the sides. Perused Notice of Motion and say.
The reasons assigned by the defendants are financial difficulty and
their ignorance of filing Written Statement. The application filed
by the defendants is on Affidavit. The plaintiff did not object the
Notice of Motion except praying for compensatory cost. Therefore,
in the aforesaid fact, in my view, the delay can be condoned by
awarding the cost of Rs. 5,000/ to be payable by the defendants
to the plaintiff. Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 1017 of 2019 is hereby made absolute
in terms of prayer clause “a and b” subject to the condition,
the defendants to pay cost of Rs. 5,000/ to the plaintiff.
2. After payment of the aforesaid amount, Written Statement of
the defendants be taken on record.
3. The cost of Notice of Motion be saddle on the defendants.
4. In view of the above, Notice of Motion No. 1017 of 2019 is
disposed off.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 04.10.2019 Greater Bombay.
Dictated on : 04.10.2019
Typed on : 04.10.2019
Draft Submitted on : 04.10.2019
Checked on : 05.10.2019
Signed on : 05.10.2019
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NM 1017-19 in SC. Suit no. 839-18
4 Date : 04.10.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/10/2019 at 3.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
04/10/2019
JUDGMENT/ORDER signed by P.O.
on
05/10/2019
JUDGMENT/ORDER uploaded on 05/10/2019
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