Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 923 OF 2018
IN
SUIT NO.1062 OF 2016
Mudassar Rajesaheb Mashalkar ...Plaintiff
V/s.
Smt.Mandeep Sehra ...Defendant
Appearances:
Ld. Adv Ms. Ameon for plaintiff.
Ld. Adv. Mr. Devendra Andewar for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 06th August,2018
ORDER
By way of this notice of motion defendant prayed for
condonation of delay to file written statement on record.
2. In supporting affidavit of Smt.Mandeep Sehra to the notice of
motion it is submitted that, on 06.09.2016 Court was passed an ex
parte order against defendant as defendant has failed to file written
statement on record. The suit is for recovery of Rs.5,05,500/ and
defendant has also repaid the amount of Rs.1,90,000/ and the demand
put forth is not proper by plaintiff. Therefore, she also quarreled with
plaintiff, due to which she lodged report with Bbangur Naagar Police
Station and there was some other disputes, due to which she was
physically and mentally harassed. In such circumstances, she was not
able to appear before the Court to file written statement on record. She
MHCC01-003143-2018
-- 1 of 5 --
NM 923/2018 .. 2 .. Suit No.1062/2016
is a single mother staying with her parents and she shocked, scared and
ashamed to share about this suit with his relatives and friends, because
name of the person and contents of the suit, due to which people would
have raised suspicion against her character. As such she has to travel
alone, due to which on 06.09.2016 when she was unable to attend the
Court the suit came to be proceeded exparte for want of written
statement on record. Hence, she prayed that, she has good case on
merits and therefore, she be permitted to file written statement on
record by condoning the delay if any occurred.
3. After service of the notice of motion, plaintiff Mudassar
Rajesaheb Mashalkar filed his reply on affidavit and denied the entire
contentions and suspicious character, as alleged by defendant. On the
other hand he submitted that notice of motion to condone delay is snot
maintainable and liable to be dismissed with costs. He submitted that,
no sufficient grounds are mentioned. Delay is not right of the party to
condone when there are no diligence. As such, at the threshold the
notice of motion be dismissed with heavy costs.
4. Plaintiff contended that, the suit was filed on 22.04.2016,
defendant was served with writ of summons on 31.05.2016. The
brother of defendant has accepted the service of writ of summons on
behalf of defendant. As defendant not appeared on 06.09.2016 the suit
came to be proceeded without written statement against defendant. As
such in absence of any plausible explanation given by defendant to
condone the delay and permit her to file written statement within
prescribed time schedule, the notice of motion be dismissed, which is
false, vexatious and filed with malafide intention.
-- 2 of 5 --
NM 923/2018 .. 3 .. Suit No.1062/2016
5. Heard both the sides. Perused the record and submissions.
6. The suit is for recovery of Rs.5,05,500/. As per case of
defendant in the notice of motion she has paid Rs.1,90,00/ and even
admitted that, Rs.3,15,500/ is still remaining and outstanding.
Whatever reasons mentioned about the mental and physical torture,
may be the ground which prevented her to appear before this Court and
after service of writ of summons. The suit came to be proceeded
without written statement against defendant on 06.09.2016.
Considering this aspect, if delay in filing written statement is condoned
and written statement is taken on record it will subserve the ends of
justice. It will also give an opportunity to defendant to put forth her
case to defend the suit, otherwise her right to defend the suit will forfeit
forever.
7. Even under O.VIII R.1 of C.P.C. prescribed the period of 30 days
to file written statement on record and which may be extended to 90
days. Writ of summons served upon defendant's brother on
31.05.2016. Hence, till 30.08.2016 defendant had an opportunity to
file written statement. However, till date of order on 06.09.2016 no
written statement is filed. Notice of Motion lodged on 10.03.2018,
which is after about 18 months. Hence, due to reasons mentioned
delay in filing written statement needs to be condoned. However,
plaintiff must be compensated by awarding costs due to delay caused by
defendant in lodging the notice of motion. Hence, I direct defendant to
pay costs of Rs.5,000/ as condition precedent payable to plaintiff
within two weeks to file written statement on record. Noncompliance
of the order will forfeit right of defendant to file written statement on
record forever. Hence, I pass the following order :
-- 3 of 5 --
NM 923/2018 .. 4 .. Suit No.1062/2016
O R D E R
1. Notice of Motion No.923 of 2018 in Suit No.1062 of 2016
is made absolute subject to payment of costs of Rs.5,000/
to plaintiff within two weeks from the date of this order as
condition precedent to condone the delay in filing written
statement of defendant on record.
2. Noncompliance of the order will forfeit the right of
defendant to file written statement on record forever.
3. Parties to take note of the order.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:06/08/2018 City Civil Court, Gr. MUMBAI
Dictated on : 06.08.2018
Transcribed on : 07.08.2018
Signed on : 07.08.2018
kps/
-- 4 of 5 --
NM 923/2018 .. 5 .. Suit No.1062/2016
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.08.2018 at 4,32 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 06.08.2018
Judgment/order signed by P.O. on 07.08.2018
Judgment/order uploaded on 07.08.2018
-- 5 of 5 --