Interim Order 4

Order Details: Notice of Motion
Pdf Text: 04.12.2024 Coram : HHJ Shri V. S. Hingne, Additional District Judge,
(Court Room No.31 : Commercial Court, Mumbai)
Sr. No.27
Commercial
Suit No.
100002 / 2019
NM 3660/23
NM 3565/24
NM 1383/19
NM 98/24
M/s. Chetan Traders Vs. M/s. KS Group
Adv. Rijul Khandare present for plaintiff.
Adv. Vijay Dubey present for defendant No. 2 to No. 4.
Adv. Saurabh Gaikwad present for defendant No. 7.
Exh. 38 - Reply to Notice of Motion No. 3565/24 filed by
plaintiff.
As per submissions of the parties, arguments for Notice of
Motion No. 103660 is over.
Order in Notice of Motion No. 103660 / 2023 :
Through Notice of Motion No. 103660 / 2023, defendant No.
5 is seeking condonation of delay of 95 days in filing Written
Statement.
Perused Record.
Relevant dates for the purpose of adjudication of Notice of
Motion No. 103660 / 2023, are as follows :
26.03.2019 - Suit is filed.
03.09.2021 - Against Chamber Summons No. 100671 / 2020,
filed by plaintiff, defendant No. 5 is added in the Suit.
01.06.2023 - Defendant No. 5 is served with Suit Summons.
05.06.2023 - Defendant No. 5 appeared in the Suit.
04.10.2023 - Defendant No. 5 filed present Notice of Motion
No. 103660 / 2023 for condonation of delay of 95 days in
filing Written Statement.
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10.01.2024 - Defendant No. 2 to No. 4 opposed said Notice of
Motion.
04.09.2024 - Heard Adv. Hardik Desai for plaintiff and Adv.
Vijay Dubey for defendant No. 2 to No. 4.
Defendant No. 5 failed to argue the Notice of Motion.
10.10.2024 - As defendant No. 5 failed to argue the Notice of
Motion, Suit was adjourned for Orders on Notice of Motion.
Above dates goes to show that, after service of summons on
01.06.2023, defendant No. 5 filed Notice of Motion on
04.10.2023 i.e. after 95 days. Thus, the delay is of 95 days.
Peculiar facts of suit is that, plaintiff has submitted for
suitable orders.
Amended First Schedule / Order 5 Rule 1 (1) of the Code of
Civil Procedure provides that, defendant is required to file
Written Statement within 30 days. In case he fails to file
Written Statement, then for reasons to be recorded in writing
and on payment of such cost as deems fit, the Court may
allow him to file Written Statement, but within 120 days from
date of service.
If any party, for technical reasons, is deprived of raising its
case, then it may result in improper adjudication. That may
lead to complexity in the dispute and may also lead to
multiplicity of litigation. If that happens, then it drags the
parties into further litigation, causing serious prejudices to
them. Hence, it is always in the interest of justice that, both
contesting parties are provided sufficient opportunities to
raise their contentions and to prove their case.
Considering aforesaid discussion, then in the interest of
justice, the Notice of Motion deserves to be allowed, but
subject to cost. Considering the fact that, claim amount of
Rs. 86,86,847.24/- and delay is of 95 days, then in given facts
and circumstances, cost of Rs. 15,000/- (Rs. Fifteen
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Thousand) would be just, legal and proper. Accordingly,
following Order is passed :
ORDER
1. Notice of Motion No. 103660 / 2023 is allowed,
subject to payment of Cost of . 15,000/- ( . Fifteen	₹ ₹
Thousand Only).
Out of said cost of, . 10	₹ ,000/- (Rs. Ten
Thousand) be paid to plaintiff and . 5	₹ 000/-
(Rs. Five Thousand) be paid to DLSA,
Mumbai.
2. Defendant No. 5 shall pay said Cost by next date.
3. If defendant No. 5 pays the Cost by next date, then
the delay caused to defendant No. 5, in filing their
Written Statement shall stand condoned. Then,
Written Statement of defendant No. 5 be taken on
record, forthwith.
4. If defendant No. 5 fails to pay the Cost, then the
Suit shall proceed further.
5. Parties be informed about their right to challenge
this Order and period of limitation for it.
6. Order pronounced in Open Court.
7. Record of Notice of Motion No. 103660 / 2023 shall
be part of Commercial Suit No. 100002 / 2019.
8. For convenience of the Lawyers and parties, this
Order is also being uploaded in PDF format.
Suit adjourned to 08.01.2025 for Compliance by defendant
No 5.
Judge
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