Interim Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.4812 OF 2018
IN
S.C.SUIT NO.2614 OF 2018
1. Mrs.Jayashri Yashwantrao Shinde
2. Mr.Yashwant Govindrao Salunkhe ... Plaintiffs
Versus
1. Mr.Subhash Govindrao Salujnkhe,
2. Mr.Rajesh Panchal,
3. M/s.Mangalnath Developers ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 23rd AUGUST, 2019
Mr.Atulkumar D.Deshkar, ld. adv. for plaintiffs.
Mr.Sachin Gelye, ld adv. for defendant no.1.
O R D E R
1. This Notice of Motion is filed by defendant no.1 for
condoning delay of 9 days caused for filing written statement by
defendant no.1.
2. Defendants' Constituted Attorney, Mr.Sushant Subhash
Salunkhe, has filed his affidavit in support of notice of motion
contending that writ of summons is not served upon defendant no.1
and its service is waived by defendant no.1. Defendant no.1 filed
Vakalatnama and thereafter gave instructions to his advocate as such 9
days delay is caused for filing written statement by defendant no.1. It is
contended that said delay is not intentional one hence it is necessary to
be condoned.
3. Plaintiffs have resisted the notice of motion by filing reply
contending that the notice of motion deserves to be dismissed because
defendant no.1 has not filed written statement within stipulated time
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provided. According to plaintiffs, defendant no.1 has shown the delay
of 9 days wrongly, however defendant has appeared in the matter on
22/10/2018 and therefore according to plaintiffs the delay for 43 days
is caused in filing the written statement. Hence, according to plaintiffs,
the notice of motion is necessary to be dismissed.
4. On last date i.e. on 22/04/2019 defendants' advocate
Mr.Sachin Gelye argued notice of motion and submitted that service of
copy of plaint was made upon defendants, however affidavit of service
of writ of summons is not filed on record, hence according to
defendants' advocate the delay of only 9 days is caused for filing written
statement of defendant no.1. As today also plaintiffs' advocate is absent.
Considering the reply filed on behalf of plaintiffs, I find that the delay
caused for filing written statement by defendant no.1 can be condoned
because affidavit of service of writ of summons is not filed by plaintiff
on record. Any how, admittedly, delay either of 43 days or of 9 days is
caused in filing the written statement but as contended by defendant he
has defence on merit, hence I find that delay caused for filing written
statement by defendant no.1 can be condoned subject to directions to
defendant no.1 to pay some costs amount to plaintiff. Hence, I proceed
to pass following order.
O R D E R
1. Notice of Motion no.4812 of 2018 is made absolute in terms of
prayer clauses(a) and (b) of Notice of Motion subject to cost of
Rs.1,000/ to be paid by defendant no.1 to plaintiff.
2. As soon as Defendant no.1 will pay cost amount to plaintiff,
written statement of defendant no.1 will be accepted.
Sd/
(K.P.NANDEDKAR)
23/08/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 23/08/2019
Transcribed on : 30/08/2019
Signed by HHJ on : 03/09/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/09/2019 12.05PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 23/08/2019
Judgment/order signed by P.O on 03/09/2019
Judgment/order uploaded on 04/09/2019
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