Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.942 OF 2018
IN
SUIT NO.2038 OF 2017
National Textile Corporation Ltd. ...Plaintiff.
V/s.
Sunil Dattatray Satam & Ors. ...Defendants.
Appearances:
Ld. Adv Ms.Vanita Kakar for plaintiff.
Ld. Adv. Ms.Poonam Gupta for defendant No.5.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 23rd January,2019
ORDER
By way of this notice of motion defendant No.5 prayed for
condonation of delay and setting aside 'no written statement' order and
permitted defendant No.5 to file written statement on record.
2. In support of notice of motion Mr.Ramechandra Pokhriyal,
defendant No.5 filed affidavit submitted that, they have received writ of
summons on 04.09.2017 and was shocked and caught unaware of the
situation to what to do in respect of false allegations made by plaintiff.
Therefore, he contacted Advocate and handed over documents. As he is
presently working with joint sector company at Guwahait, he often
required to go to Guwahati and could not get sufficient time to attend
queries of the Advocate to meet up for discussion and finalizing the
draft written statement. Therefore, delay of 129 occurred in filing
MHCC01-003194-2018
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written statement on record. Therefore, the defendant No.5 submitted
that, delay be condoned and written statement be taken on record.
Otherwise, they will suffer grave, irreparable loss, harm and prejudice,
which cannot be compensated in monetary terms as right to defend the
case will be deprived for being fair and proper trial. Therefore, he
prayed that, notice of motion be made absolute.
3. On behalf of plaintiff Saurabh Kumar Tiwari, Joint Manager
(Legal) of plaintiff filed replyinaffidavit to this notice of motion and
strongly opposed the application. They submitted that, there is no
reason mentions for condonation of delay. On the last day of hearing
on 09.07.2018 their Advocate had endorsed on the notice of motion.
However, immediately, they filed their reply and submitted that, when
this defendant admittedly received the writ of summons on 04.09.2017,
they are duty bound to file written statement within 30 days and they
have no right to seek such type of relief from the Court to condone the
delay to file written statement on record. Hence, they prayed that
notice of motion be rejected with heavy costs.
4. Heard learned Advocate Ms.Vanita Kakar for plaintiff and
learned Advocate Ms.Poonam Gupta for defendant No.5. Perused the
record and submissions.
5. This is a suit for recovery of Rs.16,61,049/ filed by NCT Ltd
against the defendants. Whatever grounds mentioned by this plaintiff
against defendants can be accepted only after giving an opportunity to
defendant to file their reply. It is also to be noted that, CBI inquiry is
going on in this matter, as per submissions of the learned counsel for
plaintiff. However, under O.XVIII R.1 of C.P.C. defendants are duty
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bound to tender their written statement within 30 days or extended
period of 90 days. Admittedly, writ of summons came to be served
upon 04.09.2017. The present notice of motion came to be tendered on
06.03.2018. Hence, there is delay of more than five months in filing
this notice of motion. The delay seems to be on the ground put forth by
defendant No.5 that he had been in service of joint sector company and
posted at Guwahati. Therefore, he has not got sufficient time to
instruct his counsel to file written statement within time. In such
circumstances, considering the reasons mentioned for delay being
reasonably explained, delay in tendering this notice of motion, which
ought to have been filed within 30 days since service of writ of
summons; if it is condoned to give an fair opportunity to this defendant
No.5 to put forth his case, whatever available to him.
6. Therefore, delay needs to be condoned, but it must be
compensated by awarding costs. In this regard the observations of
Hon.Justice G.S. Patel in the case of Ram Nagar Trust No.1 & Anr.
Versus Mehtab L. Sheikh & ors., (Suit No.2012 of 2009 with Notice of
Motion No.1345 of 2014, dt.27.02.018) will be useful. I am
reproducing it as follows :
“6. I compute the delay from 25th November 2016 until today. This is a
period of 450 days; possibly more, but not less. Costs must be imposed
for each day’s delay. I do not think that, in this day and age, and
especially in this city, costs of Rs.1000 per day are at all unreasonable.
Anything less than that is illusory and meaningless and the time has
gone when a Court could, would or should pick up some utterly random
figure like Rs.5,000 or Rs.25,000, a number wholly without tether to
the actual days of delay. Fixing ad hoc figures like this is counter
productive. Parties believe that even if the delay is inordinate, the costs
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of that delay will be negligible; and hence they continue to extend the
delay. The costs must be real. They must be sufficient to convey the
message that noncompliance with our orders brings consequences; that
these consequences are inevitable and unavoidable; and the
consequences are not some piffling trifle.”
7. In view of above observations of Hon.Bombay High Court and
considering the facts of the case and delay of 129 days sought to be
condoned by this defendant, costs of Rs.100/ per day to condone delay
delay will subserve the ends of justice. After payment of costs of
i.e Rs.100 X 129 = Rs.12,900/, within four weeks from the date of this
order, defendant No.5 will be permitted to file their written statement
on record.
8. With above discussion, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.942 of 2018 in Suit No.2038 of
2017 is made absolute subject to costs of Rs.100/ per
day i.e for condonation of delay of 129 days which
comes to Rs.12,900/ within four weeks from the date
of this order.
2. Noncompliance of the order will forfeit right of this
defendant No.5 to file written statement on record
forever.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:23/01/2019 City Civil Court, Gr. MUMBAI
Dictated on : 23.01.2019
Transcribed on : 24.01.2019
Signed on : 24.01.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.01.2019 at 5.23 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 23.01.2019
Judgment/order signed by P.O. on 24.01.2019
Judgment/order uploaded on 24.01.2019
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