Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010035622018
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4977 OF 2019
IN
S.C. SUIT NO.1492 OF 2018
IN
S.C. SUIT NO.1870 OF 2019
IN
COMMERCIAL SUIT NO.298 OF 2020
M/s. New Manak Overseas Pvt. Ltd. ] … Plaintiff
V/s.
Mr. Rahul Narpat Bokadia ] ... Defendant
AND
Rahul Narpat Bokadia ] ...Applicant
Appearances :-
Mr. S.R. Maurya, Ld. Adv. for plaintiff.
Mr. Lokesh Zhade, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED :21st February, 2020
MHCC01-01013590-2019
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ORAL ORDER
1. Defendant took out this notice of motion, for condonation
of delay in filing written statement and to take written statement on
record.
2. Perused notice of motion, affidavit in support of notice of
motion and reply of plaintiff’s Advocate. Heard both the sides.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing in written
statement can be condoned ?
In the Affirmative
2. Whether defendant can be permitted to
file written statement on record ?
In the Affirmative
3. What Order ? As per final order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of defendant that writ of summons
are served to defendant. Defendant could not appear in the matter and
could not file written statement. After serving writ of summons,
defendant tried to contact his Advocate. He could not contact his
Advocate due to medical emergency at his home because his grand
mother was hospitalized in Bombay Hospital. He approached to his
Advocate on 17.10.2019. He gave instructions to his Advocate to
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prepare written summons. Due to medical problem and business
commitment he could not give instruction to his earlier Advocate to
prepare written statement. His earlier Advocate informed him that
already there is delay in filing written statement. Therefore, delay of
382 days, it be condoned.
5. It is contention of plaintiff that heavy costs be imposed.
6. Perused affidavit of service and writ of summons Exh-4. It
is metnioned therein that writ of summons are issued on 29.10.2018.
The Board Department of this Court received Acknowledgment Card of
duly serviced writ of summons on 31.10.2018.
7. Defendant appeared through Advocate on 17.12.2019.
8. The suit is filed in the year 2018. Initially, the suit was
registered as S.C. Suit No.1492/2018. Thereafter, the suit re-registered
as S.C.Suit No.1870/2019. Again the suit re-numbered as Commercial
Suit No.298/2020 in the month of February-2020.
9. As per Order 8 Rule 1 of Code of Civil Procedure
defendant has to file written statement within 30 days from the date of
service of summons. As per the proviso of Order 8 Rule 1 where the
defendant fails to file the written statement within the said period of
thirty days, defendant can be permitted to file written statement within
90 days, if defendant makes out grounds for delay in filing written
statement. In view of Rule 9 and 10 of Code of Civil Procedure the
proviso of Order 8 Rule 1 is not mandatory but it is directory in nature.
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10. There is amendment in Code of Civil Procedure in Order 8
Rule 1 regarding Commercial disputes. As per the amendment where
the defendant fails to file the written statement within the period of 30
days from the date of service of writ of summons then defendant shall
be allowed to file written statement on such other day, as the Court may
be specified for the reasons to be recorded in writing and on payment of
such costs, but defendant shall not be permitted to file written
statement later on than 120 days from the date of service of summons.
After expiry of 120 days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the
Court shall not allowed the written statement to be taken on record.
The said amendment is with effect from 23.10.2015.
11. Initially, this suit was not registered as Commercial Suit and
therefore considering the reasons mentioned in affidavit in support of
notice of motion, I am of the opinion that defendant can be permitted to
file written statement subject to some costs to decide the suit on merit.
Hence, delay can be condoned and written statement of defendant can
be taken on record. Hence, I record my findings to point Nos.1 and 2 in
affirmative and point No.2, the notice of motion is allowed as per final
order. Hence, following order.
ORDER
Notice of Motion 4977/2019 is allowed as under:
1. Delay in filing written statement is hereby condoned subject to
costs of Rs.1,000/- (Rs. One Thosand Only).
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2. Time gratned till next date to depoist the said costs in the court or
it be given to the plaintiff.
3. Written statement of defendant be taken on record after
compliance of order of the costs.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Date :- 21/02/2020 City Civil Court, Gr. MUMBAI
Dictated on : 21/02/2020
Transcribed on : 24/02/2020
Checked on : 09/03/2020
Signed on : 11/03/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
18.03.2020 12.30 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. SHRI S. G. BORLEPWAR
(COURT ROOM No.20)
Date of pronouncement of Order 21.02.2020
Order signed by P.O. on 11.03.2020
Order uploaded on 18.03.2020
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