Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010108062018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1033 OF 2020
IN
SUIT NO.2715 OF 2018
IN
COMMERCIAL SUIT NO.203 OF 2020
1.M/S.COSCO SHIPPING LINES (INDIA)
PVT.LTD.
All having their registered office at,
ICICI Venture House,2nd floor,
Appasaheb Marathe Marg,
Prabhadevi, Mumbai-400 025. ....Applicant
Original defendant no.1.
V/s
IN THE MATTER BETWEEN
1.M/S.RUSHABH SEALINK PVT.LTD.
Having its address at
310,Damji Shamji Indl Complex
9, L.B.S.Marg,Kurla(W),
Mumbai-400 070
Also office address at,
Unit No.FF-A-10, Art Guild House
Pheonix Market City,
LBS Marg, Kurla(W),
Mumbai-400 070
Through its authorized signatory,
Mr.Umesh Salin, aged 39 years
(Finance Controller) …..Plaintiff
V/s
-- 1 of 7 --
2
2. M/S.COSCO SHIPPING LINES
(INDIA) PVT.LTD.
3. MR.CHEN SHAOLIN
(Managing Director)
4. MR.ARVIND DARAB DUBASH
(Nominee Director)
5. MR. MA HINGHAN
(Nominee Director)
All having their registered office at,
ICICI Venture House,2nd floor,
Appasaheb Marathe Marg,
Prabhadevi, Mumbai-400 025. ……. Defendants
6. THE OFFICE OF DIRECTOR
GENERAL OF SHIPPING MUMBAI,
through its Chairman. ....Respondents
APPEARANCE:-
Advocate Govinda Gupta for plaintiff.
Advocate Nimay Dave for defendant.
CORAM : H. H. AD-HOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO.32)
DATE : 12th March, 2020
ORDER
Perused Notice of Motion and affidavit in reply and reply
tendered by plaintiff.
2. Defendant has taken out Notice of Motion on the ground that
the suit was listed on 24/6/2019 and the advocate was present on
first hour of the day but due to unenforceable circumstances
-- 2 of 7 --
3
advocate for the defendant could not present when the matter was
called out to clarify that there was an understanding that the
written statement of the defendants was to be filed after
amendment of the plaint. It is further submitted by defendant that
the present suit involves documents issued from multiple countries
and from authorities of such countries that are not in the control
or ownership of the defendant and therefore, the defendant while
collecting and compiling the documents has exceeded the time to
file written statement. It is further submitted that applicant has
recently obtained documents related to the dispute. It is further
submitted by the defendant that after filing suit some of the
amounts were refunded to the plaintiff from the security deposit.
However, the defendant did not file written statement within the
prescribed time due to the above mentioned reasons. Lastly, it is
prayed that if there is delay in filing the Notice of Motion for
setting aside order dated 24/6/2019 may be condoned.
3. The plaintiff resisted Notice of Motion by filing written reply.
It is contended by the plaintiff that the Notice of Motion filed by
defendants is bad in law and is done with malafide intention as
the same is filed as an afterthought. It is pointed out by the
plaintiff that the Notice of Motion is filed by the defendant is
misconceived, baseless and not maintainable as per the law. It is
further contended by the plaintiff that summons were served upon
the defendant on 27/11/2018 thereafter after filing of vakalatnama
matter was adjourned on several dates and defendant had extensive
opportunity to file the written statement. Advocate appeared on
each and every dates, however, the defendant intentionally failed
-- 3 of 7 --
4
to file written statement as defendant just prolonging the matter.
Lastly, it is prayed that advocate appeared on each and every dates
though did not file written statement and therefore, on 24/6/2019
order was passed against defendant. It is prayed that the Notice of
Motion may kindly be dismissed with costs.
4. I have heard Ld.Counsel for defendant Nimay Dave and
advocate for plaintiff Govinda Gupta.
5. After hearing both the Ld.Counsels I have perused record. As
per affidavit of service of summons the defendant no.1 was served
on 11/1/2019 and defendant no.2 was served on 27/11/2018.
Defendant no.3 was served on 26/11/2018 and defendant no.4 was
served on 26/11/2018. In response of summons advocate for
defendant nos.1,3 and 5 was appeared on 2/2/2019 and tendered
vakalatnama. However, till filing Notice of Motion they failed to
file their written statement. It is to be noted here that the
defendants failed to file their written statement alongwith Notice of
Motion also. After service of summons the defendants failed to file
written statement till 24/6/2019 and therefore my Ld. Predecessor
passed an order and suit was proceeded without written statement
against defendant nos.1 and 3. Thereafter, suit was adjourned on
19/10/2019, 9/12/2019 and 2/1/2020 however, defendants failed to
file written statement on record. Initially, the suit was registered
in Short Cause Suit No.2715 of 2018. Thereafter, the suit was
converted into Commercial Suit No.203 of 2020. As per O.VIII R.1
of CPC the defendant shall, within 30 days from the date of
service of summons on him, present a written statement of his
defence. As per the proviso under O.VIII R.1 of CPC when the
-- 4 of 7 --
5
defendants failed to file the written statement within the said
period of 30 days, time can be extended for the reasons to be
recorded in writing shall not be later than 90 days from the date
of service of summons. Admittedly, the defendants failed to file
written statement within stipulated time under O.VIII R.1 of CPC
and raised the ground that the documents issued from multiple
countries and from authorities of such countries that are not in the
control or ownership of the applicant and therefore, the applicant
while collecting and compiling the documents has exceeded the
time to file written statement. However, these ground was not
supported by an affidavit of any concern. The defendant failed to
inform the said facts by way of application. Defendant failed to file
application for extension of time on this ground. Moreover, the
defendant raised ground that some of the amount is refunded to
the plaintiff from the security deposit. But in my view the ground
raised by the defendant in the Notice of Motion is not at all came
into the definition or extraordinary reasons to satisfy the court to
condone delay.
6. Secondly, as per the entries in the roznama after filing
vakalatnama on each and every dates advocate for defendants
appeared before the court but failed to file written statement
within stipulated time. As submitted by the counsel for defendant
it is true that if the defendant shows explanation for delay then
court has power to consider the grounds under O.VIII R.1 of CPC.
However, in the present Notice of Motion I found that the reason
mentioned in the Notice of Motion is not satisfactory to condone
the delay and therefore, I come to conclusion that in Short Cause
-- 5 of 7 --
6
Suit No.2715 of 2018 though Court has discretion to condone delay
however, the ground raised by the defendant is not extraordinary
and therefore, there is no ground to operate the power under
O.VIII R.1 of CPC to condone delay for setting aside order dated
24/6/2019.
7. Secondly, as I stated above the suit is converted in to the
Commercial Suit. As per the Commercial Court Act and amendment
O.VIII R.1 Of CPC the time limit for filing written statement is
extended upto 120 days. If the case of defendant is considered on
the amended provision of Commercial Court Act then also reasons
mentioned in the Notice of Motion is at all not come to the help
of defendant to condone delay for setting aside order dated
24/6/2019. In view of facts and circumstances, I am of the
opinion that there is no extraordinary or special grounds in the
Notice of Motion to set aside order dated 24/6/2019. Under such
circumstances, I found that Notice of Motion does not have any
merit and therefore, I proceed to pass following order.
ORDER
Notice of Motion No.1033 of 2020 is dismissed with costs.
Date:- 12/03/2020 (Milind A.Bhosale)
Ad-Hoc Judge
City Civil & Sessions Court,
Gr.Bombay
Direct Dictated on :- 12/03/2020
H.H.J.Signed on :- 13/03/2020
-- 6 of 7 --
7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/03/2020 at 4.10 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R.No.32)
Date of Pronouncement of JUDGMENT/
ORDER
12/03/2020
JUDGMENT/ORDER signed by P.O. on 13/03/2020
JUDGMENT/ORDER uploaded on 13/03/2020
-- 7 of 7 --