Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1406/19 in Suit 7450/05
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1406/2019
IN
SUIT NO. 7450/2005
(High Court Suit No.3483/2005)
Rajkumar Dattatraya Survase ..Plaintiff
V/s.
The Bombay Dyeing and Manufacturing
Co. Ltd. ..Defendant
Appearance:
Adv. Ms. Sukeshi Bhandari for plaintiff.
Adv. Ms. Nidhi Saliyan for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 3.7.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
and copy of Written Statement (WS) dated 22.3.2019 vide Exh.A along
with N/M. I have also perused the affidavit in reply to the N/M filed on
behalf of the plaintiff supported by documents on record vide Exh.A and
also perused authorities cited and relied upon by the Ld. Counsel for the
plaintiff and defendant in support of their respective contentions.
2. This N/M is filed on behalf of the defendant for
condonation of delay in filing W.S. Approximate delay is of 3610 days.
W.S dated 25.3.2019 is to be taken on record subject to condonation of
above mentioned delay. The defendant has given break up of the year
wise period of days for the purpose of calculating delay in para 8 of the
affidavit. It is submitted on behalf of the defendant that, the present
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suit is nothing but a counterblast to the suit No. 2227/2005 filed by the
defendant against the plaintiff before Hon'ble High Court. The matter is
highly contested. Legal Deptt. of the defendant had appointed M/s.
Crawford Bayley & Co. to appear and defend its case before Hon'ble
High Court , however as per record the said advocate had not pursued
as other Suit No. 2227/05 was contested between the parties and
defendant and its legal deptt. had lost track of the case and contact of
the said advocate, who were expected to look after the matter before
High Court on behalf of the defendant.
3. It is further submitted on behalf of the defendant that, in
the year 2013, present suit was transferred from High Court to this
Court and since then neither the plaintiff nor the defendant attended
the suit. Hence, same was dismissed. From the date of dismissal, for
about five years the suit remained in the state of 'dismissed suit' until it
was restored vide order dated 4.9.2018. It is submitted that, the
defendant came to know about the transfer of the suit from High Court
to this Court in the list of undefended suits vide order of the
Prothonotary & Senior Master, High Court, Bombay while the suit was
pending in the High Court. It is argued that, the advocate of the
defendant did not inform the legal department of the defendant about
the above said development. On the other hand, counter suit i.e.
2227/05 filed by the defendant before High Court was also transferred
to this Court in the year 2012 and was renumbered as SC Suit
No.6777/05 and the said suit is pending and highly contested by the
parties before this Court. The trial of the said suit is going on in C.R
No.31 and witness of the defendant is under crossexamination.
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4. Under the above circumstances, the defendant's legal deptt
had lost track of the present suit and could not give instructions to the
newly appointed advocates to prepare and file WS in the suit. Now the
W.S on behalf of the defendant has been prepared and is ready for filing
vide Exh.A. As per Roznama of the case, writ of summons of the suit
was served on the defendant sometime in the month of February 2009.
Under the above circumstances, it is prayed that, the period of 2002
days may be excluded for the purpose of calculating the delay i.e. from
7.5.2013 to 31.10.2018 when the suit was in the state of dismissal and
the plaintiff had reserved the plaint after its restoration. Secondly, it is
further prayed that, the period of 1402 days may be excluded for the
purpose of calculating the delay i.e. from 1.5.2009 to 2.3.2013, the
period between the service of writ of summons upto the suit being
taken up for hearing by this Court because during this period, the
defendant had lost track of the suit and was not completely in touch
with the advocate. It is argued that, it is settled principle of law that,
the litigant should not suffer for the lapse on the part of an advocate.
5. On the above background, it is lastly prayed that, actual
delay in the present case in filing the WS comes to 66 days i.e. from
2.3.2013 to 7.5.2013 and period of 139 days from 1.11.2018 to
19.3.2019. During the above period of 66 days, neither the plaintiff nor
the defendant had appeared before the Court and suit was dismissed.
Second part of 139 days delay has been explained by the defendant in
the affidavit supported by documents.
6. Ld. Counsel for the defendant has placed reliance on the
decisions of Hon'ble Bombay High Court in the case of Rameshlal s/o.
Girdharidas Kukreja V/s. Yogesh s/o. Namdeorao Jogi and Anr.
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(2015(5) Mh.L.J. 188), in which Hon'ble Bombay High Court has held
that, if reasons pleaded for the condonation of delay in filing W.S. are
satisfactory and sufficient to condone the delay, same can be condoned
subject to payment of reasonable cost. In that suit delay was condoned
by Hon'ble Nagpur Bench of Bombay High Court subject to cost of
Rs.5000/as a condition precedent.
7. The N/M is strongly opposed by Ld. Advocate for the
plaintiff. Ld Counsel has relied on the affidavit in reply to N/M. The
plaintiff has denied the contention that, the defendant has submitted
just and satisfactory explanation regarding delay in filing the W.S. It is
submitted that, the delay in filing the W.S in the present case is of about
3610 days, which is huge delay of about 10 yrs., same cannot be
condoned. It is submitted that, the N/M itself filed at this stage of trial
is not maintainable and it is liable to be rejected.
8. Ld. Counsel for the plaintiff has contended that, it is not
correct to say that, the present suit is counterblast to the suit no.
2227/05 as argued by Ld. Counsel for the defendant. There is no
substance in the contention of the defendant that the legal department
had engaged M/s. Crawford Bayley & Co. to represent before High
Court, because as per Rojnama of the case, copy of which is produced
along with affidavit in reply vide Ex.A, shows that the name of the said
advocate is not reflected as Counsel for the defendant before High
Court. Similarly, it is argued that, the reason given by the defendant
that because suit no. 2227/05 was contested between the parties, the
defendant had lost track of the present suit and could not file WS
cannot be accepted. It is submitted that, the contention of defendant
itself is doubtful that they had engaged advocate M/s. Crawford Bayley
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& Co. for defending its case before High Court. Regarding exclusion of
the period of number of days mentioned in the affidavit supporting the
N/M, it is argued that the same is not legal and permissible and no
justification is provided for the same by the defendant. Under the above
circumstances, it is argued that, the affidavit filed on behalf of the
defendant cannot be accepted as reliable one in absence of supporting
record.
9. Lastly, it is argued that, the defendant has not come with
satisfactory explanation regarding the delay of 2003 days from 7.5.2013
to 31.10.2018 and delay of 66 days from 2.3.2013 to 7.5.2013.
Similarly, the delay of 138 days from 1.11.2018 to 19.3.2019 has not
been properly explained by the defendant and therefore, the N/M is
liable to be rejected. If the Court is inclined to allow the application, it
should be made subject to heavy cost.
10. In support of above submission, Ld. Counsel has placed
reliance on the authority of Hon'ble Bombay High Court reported in the
case of Atcom Technologies Ltd. V/s. Y.A. Chunawala and Company
and Others (2018 DGLS(SC) 430) (SC). I have gone the above
authority and find that, in the said case, Hon'ble Apex Court has held
that, as per amended provisions of CPC vide Order 8 Rule 1, delay of 5
years and 54 days was condoned by High Court. It was held that, the
delay condoned by the Ld. Single Judge of High Court on the ground
that writ of summons was not served till 2009 when the suit was filed ,
was not proper and order of Hon'ble High Court was set aside.
11. Ld. Counsel for the plaintiff has specifically relied on the
observations of Hon'ble Apex Court in paras 15 to 17 of the above said
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decision, wherein it is held that upper limit of filing WS is of 90 days.
The delay in filing the WS beyond 90 days can be condoned only in
exceptional cases. It was observed that, though provisions of Order 8
and Rule 1 are procedural in nature and therefore, hand maid of justice.
It does not mean that, the defendant has right to take as much time as
he wants in filing WS without giving convincing and cogent reasons for
delay and the Court has to condone it mechanically.
12. I have gone through the grounds stated in the affidavit in
support of the N/M and taken into consideration affidavit in reply filed
on behalf of the plaintiff. I have also taken into consideration oral
submissions made by Ld. Counsels for both sides. I have also gone
through the authorities of Hon'ble Apex Court and Hon'ble Bombay
High Court cited and relied upon by respective sides.
13. It is clear from the facts of the present case that, though
there is delay of 3610 days in filing WS as per para 8 of the affidavit
supporting the N/M giving the break up of the year wise days of the
delay, the actual period of delay is different. The break up of the said
year wise delay for the purpose of calculating the actual delay would
come as under:
1. From 1.5.2009 to 2.3.2013 – delay of 1401 days
(03 yrs., 10 months and 01 day)
2. From 2.3.2013 to 7.5.2013 – delay of 66 days (02
months and 05 days)
3. From 7.5.2013 to 31.10.2018 delay of 2003 days
(5 yrs., 5 months and 24 days)
4. From 1.11.2018 to 19.3.2019 – delay of 138 days
(04 months and 18 days).
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14. The delay of 1401 and 2003 days i.e. respectively from
1.5.2009 to 2.3.2013 and from 7.5.2013 to 31.10.2018 is liable to be
excluded as legal department of the defendant was out of touch from
the advocate M/s. Crawford Bayley & Co. and when the suit was in the
state of dismissal and period of 66 days from 2.3.2013 to 7.5.2013
needs to be considered separately as neither the plaintiff nor the
defendant had appeared before this Court after suit was transferred
from High Court. I find that, in paras 8 to 13 of the affidavit in support
of the N/M, the defendant has explained the actual delay of 138 days
(from 1.11.2018 to 19.3.2019) and I find that the explanation given is
satisfactory, therefore, it would be in the interest of justice that the said
delay can be condoned subject to reasonable cost. It is clear from the
material on record that, the present suit is a counter to Suit No.
2227/05 (i.e. reregistered as Suit No. 6777/05) and that matter is
highly contested. Under the above circumstances, I proceed to pass
following order:
ORDER
1. Notice of Motion No.1406/2019 is hereby
allowed subject to cost of Rs.8,000/ (Rs. Eight
Thousand only) to be paid by the defendant as
a condition precedent.
2. Out of the cost amount of Rs.8,000/, an
amount of Rs.4,000/ shall be paid to the
plaintiff towards delay and amount of
Rs.4,000/ shall be deposited in the office of
legal aid (DLSA, Mumbai).
3. The defendant is directed to comply with the
above order within a period of one month from
today, failing which the N/M shall stands
dismissed.
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4. N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 3.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 3.7.2019
Typed on : 3.7.2019
Signed by HHJ on : 5.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :12.7.19
TIME: 2.10 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 3.7.19
Judgment/ order signed by P.O on 5.7.19
Judgment/ order uploaded on 12.7.19
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