Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1144/2019 in Suit 69/1991
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1144 OF 2019
IN
SUIT NO. 69 OF 1991
CNR NO. : MHCC010029672019
Uttam Value Steel Limited ...Plaintiff
Versus
Oil India Limited & Anr. ...Defendants
And
State Bank of India … Applicant
Appearance:
Mr. Maravoor, Advocate for plaintiff.
Mr. Vinay Bhoge, Advocate for Defendant No.2.
CORAM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 06/01/2020
ORAL ORDER
1. The notice of motion is filed by defendant no. 2 to condone
the delay to file written statement. The notice of motion is
supported by affidavit of Rajendra Salunke, the authorized
representative of defendant no. 2. He stated on oath that the
plaintiff has amended the plaint. They have received the copy of
amendment. The draft notice of motion and the written statement
was ready however, there is delay which is not intentional. Hence,
prayed to allow the notice of motion.
2. The plaintiff filed reply to the notice of motion through
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affidavit of P.R. Raviganesan, the Chief Financial Officer and
Company Secretary of the plaintiff company. The copy of the
amended plaint was served to defendant no. 2 on 15.12.2016. The
written statement ought to have been filed on 15.01.2017. The
delay is not explained. There is no resolution filed on record to
authorize the representative to file affidavit and affirm the
contents of notice of motion. Hence, prayed to reject the
application.
3. Heard advocate Vijay Bhoge for defendant no. 2 and
advocate Shri. Maravoor for plaintiff. I have gone through the
contents of notice of motion and reply supported by affidavit of
respective parties.
4. Advocate Vinay Bhoge for defendant no. 2 during the
argument stated that though the advocate for defendant no. 2
prepared written statement and forwarded it to the department for
correction and verification, due to delay on the part of the
defendant, the written statement could not be filed within
limitation.
5. On the other hand, advocate Maravoor for plaintiff objected
for allowing the notice of motion on the ground that the delay is
not explained. The para nos. 3 & 4 of affidavitinsupport of notice
of motion does not disclose the cause for the delay. Advocate
Maravoor for the plaintiff has pointed out the prayer clause of the
notice of motion that number of days for delay is kept blank.
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6. Advocate Maravoor for plaintiff has relied on authority
reported in Parasmal Daulatram Jain Vs. Rameshwar Rathanlal
Karwa [LAWS (BOM)20191043] . The time schedule under
Order 8 Rule 1 of Code of Civil Procedure has to be honoured. The
defendant cannot be permitted to seek extension of time where
there is gross negligence on the part of the defendant.
7. The suit is filed in the year 1991. The plaintiff did not deny
that they have carried out amendment during the pendancy of the
suit as per order dated 25.08.2014 and 23.07.2014. The suit is
filed to declare that invocation of the bank guarantee is fraudulent,
malafide, illegal and wrongful. The suit is proceeded without
written statement against defendant no. 2. The plaintiff has
amended the plaint and added paras and reliefs to the suit. The
claim is of 98,30,000/. There is delay on the part of the defendant
no. 2 bank to file written statement but considering the nature of
the suit, the delay can be condoned on payment of cost to the
plaintiff. I have gone through the authority relied by the plaintiff.
The Order 8 Rule 1 of Code of Civil Procedure is discretionary. The
amendment was brought by Act 22 of 2002. Therefore, to the
present suit filed in the year 1991, the amendment will not be
applicable. However, the delay has to be considered on the basis of
the nature of the suit and the cause. The defendant no. 2 is a
banking institute and the fault of the department should not affect
the institute. The plaintiff can be compensated with cost. No
prejudice will cause to the plaintiff. Hence, pass the following
order:
ORDER
1. The delay caused to file written statement by
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defendant no. 2 is condoned on payment of cost of Rs.
5,000/ (Rupees Five Thousand Only) to the plaintiff
to be paid on or before 31st January, 2020.
2. The defendant no. 2 should file the written statement
on 31st January 2020 itself, after payment of the cost
to the plaintiff, failing which the suit will proceed
further.
3. Accordingly, notice of motion is disposed of.
(Smt. S.S. Nagur)
Adhoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 06/01/2020.
Typed on : 06/01/2020.
Sign on : 07/01/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10/01/2020 10.45 a.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
06/01/2020
Judgment/order signed by P.O on 07/01/2020
Judgment/order uploaded on 10/01/2020
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