Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.1298 OF 2019
IN
S.C.SUIT NO.2702 OF 2018
New India Polyvinyl Private Limited .... Plaintiff
V/s
Mr.Vinay Kumar Chandrakant Sarang .....Defendants
APPEARANCE:
Advocate Mr.Rahul Gaikwad for plaintiff.
Advocate Surya Gujar for defendant.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 01st November, 2019
ORDER
Perused Notice of Motion @ Affidavit.
2. It is submitted by defendant that the present suit is filed by
plaintiff against him for recovery of amount and the writ of summons is
executed to him on 23.10.2018. Thereafter, he appeared before the
court in person and due to financial issues he was not avail to appoint
an advocate and therefore, he was attended the court on 01.11.2018. It
is further submitted by the defendant that due to short of time and he is
senior citizen and pensioner he could not tender vakalatnama of his
advocate and also failed to tender written statement within time. It is
further submitted that on 24.01.2019 he was reached to the court but
he was late due to mechanically break down of his motor cycle. Later
on he came to know that suit is proceeded exparte against him. It is
submitted by the defendant that he will not be is in position to submit
written statement unless exparte order being set aside. Lastly, it is
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submitted that Notice of Motion may be allowed and order dated
24.01.2019 may kindly be set aside.
3. Say of plaintiff is called by delivering the copy of Notice of
Motion to the plaintiff. However, plaintiff failed to tender reply and
therefore, Notice of Motion is proceeded without reply of plaintiff.
4. Ld. counsel for plaintiff contest Notice of Motion by way of oral
argument.
5. I have heard Ld. counsel for defendant Surya Gujar. She
submitted that the defendant is a senior citizen/pensioner and facing
financial issues and therefore, he is unable to appoint an advocate to
look after his matter. She further submitted that after passing order
defendant is present before the court in person on 24.01.2019 also he
was attended the court on every dated. However, due to mechanical
break down of his motor cycle. He reached late in the court and order
was passed. She drew my attention towards the record and submitted
that the suit is proceeded exparte against the defendant. She tendered
her vakalatnama on 20.09.2019 and thereafter, she immediately moved
Notice of Motion to set aside order dated 24.01.2019. Lastly, she
submitted that because of exparte order defendant could not tender his
written statement unless the exparte order passed against defendant is
set aside. She further submitted that she is not in position to tender her
written statement unless order passed against defendant is set aside.
Lastly, she prayed that order dated 24.01.2019 kindly be set aside.
6. Per contra, Ld. Counsel for plaintiff submitted that enough
opportunities are given to the defendant however, defendant failed to
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tender written statement within time. She drew my attention to the
Notice of Motion and submitted that the defendant has filed Notice of
Motion without written statement. Lastly, she submitted that the
defendant is trying to delay the trial. She further submitted that the
defendant failed to explain the reason for non filling of written
statement within stipulated time in the Notice of Motion. Lastly, she
prayed that Notice of Motion may kindly be dismissed with cost.
7. After gone through the submission of Ld.Counsel I drew my
attention towards record as per record the defendant duly executed by
way of writ of summons and in response of writ of summons he
appeared before the court in person on 01.11.2018. After granting
sufficient time defendant failed to tender written statement and also
failed to engage advocate on his choice. When my Ld. Predecessor
found nothing was tendered by plaintiff he has passed order on
24.01.2019 and suit is proceeded exparte against defendant.
Thereafter, suit is posted on 28.02.2019 and 13.03.2019 defendant is
present before the court in person however, failed to take steps against
the order dated 24.01.2019. It is to be noted here on 16.03.2019 the
defendant in person tender the draft Notice of Motion @ Affidavit and
later on the Ld. Counsel for defendant tendered her vakalatnama on
20.09.2019. When the defendant in person tendered draft Notice of
Motion @ Affidavit on 16.03.2019 how one can say that he does not
have any knowledge about the technicality. Moreover, it is pointed out
by Ld counsel for defendant he is senior citizen but there is nothing on
record to show his exact age. Admittedly, as in writing pointed out by
the counsel that the defendant has failed to file written statement @
Notice of Motion. As per O. VIII R.1 of CPC it is obligatory on the part of
defendant to tender written statement within 30 days. Provided that if
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defendant failed to tender written statement within 30 days time limit
can be extended till 90 days if defendant explain special reasons. In the
present Notice of Motion the defendant did not whisper about the
reason of delay. Moreover, the delay is not properly explained by the
defendant. It is submitted that he was reached to the court because of
mechanical break down of his motor cycle but this reason is not
supported by way of evidence and if there is no explanation of delay for
filing written statement. Under such circumstances, in the above said
discussion I come to conclusion that the Notice of Motion does not have
any merit and hence I proceed to pass following order.
ORDER
Notion of motion No. 1298 of 2019 is dismissed with costs.
Date:01/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 01/11/2019
Typed on :01/11/2019
H.H.J.Signed on :01/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
01.11.2019 at 11.30 a.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
01.11.2019
JUDGMENT/ORDER signed by P.O. on 01.11.2019
JUDGMENT/ORDER uploaded on 01.11.2019
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