Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1435 OF 2019
IN
S.C. SUIT NO.1505 OF 2014
AB Mauri India Pvt. Ltd., (Formerly ]
Known as Burns India Pvt. Ltd.) ] … Plaintiff
Vs.
1. Precision Industries and Ors. ] ... Defendants
Appearances :
M4. Parera, Advocate for Plaintiff.
Mr. Dilip Rai, Advocate for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 24th January, 2020
ORAL ORDER
1. Defendant Nos.2(a) to 2(b) filed this Notice of Motion to
set aside order dated 29.1.2019 proceeding exparte against them,
condone delay in filing written statement and to take written statement
on record.
MHCC01-003732-2019
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2. Perused Notice of Motion, affidavit in support of Notice
Motion, plaintiff's reply and rejoinder of defendant. Heard both sides.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether exparte order dated
29.01.2019 passed against defendant
No.2(a) to 2(b) can be set aside ?
In the affirmative.
2. Whether delay in filing written
statement can be condone ?
In the affirmative.
3. Whether written statement of
defendant No.2(a) to 2(b) can be taken
on record ?
In the affirmative.
4. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 4.
4. In brief, it is contention of defendants that defendant
Nos.2(a) is lady about 86 years old. She was not aware about this
proceeding. Her husband was looking after the suit as defendant No.2.
She and her son defendant No.2(b) have not received the copy of
amended plaint. Plaintiff has filed affidavit of service that copy of the
amended plaint is served upon her and her son.
5. Defendant No.2(b) in the first week of February, 2019 meet
with the Advocate of deceased defendant No.2. The said advocate
informed him about the pendency of the suit. Therefore, defendant
No.2(b) came to know about this proceeding.
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6. Both the defendants requested the said Advocate to appear
in the matter. Their Advocate prepared written statement on their
instructions. Written statement is affirmed on 12.3.2019. The said
written statement was sought to be tendered on record but the suit was
proceeded exparte as per order dated 29.01.2019, therefore, the
written statement was not taken on record. If the said order of exparte
is not set aside, it will cause prejudice to the defendants. Hence Notice
of Motion be allowed.
7. In brief, it is contention of the plaintiff that defendant
No.2(a) has blatantly levied wild and baseless allegations in the
affidavit in support of Notice of Motion. All the adverse contentions are
denied. Defendant No.2(a) deliberately did not state the date when the
written statement was served upon the Advocates for plaintiff. In fact,
it is served upon the Advocate of plaintiff on 18.02.2019 much after the
passing exparte order. Hence Notice of Motion be dismissed.
8. In brief, it is contention of the defendant No.2(a) in
affidavit in rejoinder that she reiterates contentions raised in the
affidavit in support of Notice of Motion and she denied contentions
raised in the reply.
9. Perused affidavit of service. It is mentioned in the affidavit
of service that defendant No.2(a) and 2(b) received envelope
containing the writ of summons on 03.11.2018 which appears from the
signature and date affixed on both the RPAD Cards.
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10. According to the defendant No.2(a) and 2(b) they did not
receive writ of summons and they came to know about this proceeding
in the first week of February, 2019.
11. If for a moment it is presumed that writ of summons are
served to defendant No.2(a) and 2(b) on 03.11.2018 or they came to
know about this proceeding in the first week of February, 2019 even
though in both the circumstances, there is delay in filing the written
statement.
12. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called
on for hearing, the Court may make an order that the suit be dismissed.
13. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
14. 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
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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.
15. It appears from the affidavit in support of Notice of Motion
that defendants are interested to defend the suit. Considering the age
of defendant No.2(a) and the reasons mentioned in the Notice of
Motion for not appearing before the Court on 29.01.2019, I am of the
opinion that the said exparte order can be set aside to decide the suit
on merit. There is delay in filing the written statement. Considering
the facts and circumstances delay can be condoned and defendant
No.2(a) and 2(b) can be permitted to file written statement. Copy of
the written statement is annexed with affidavit in support of Notice of
Motion. It appears that it is affirmed before the Notary on 08.02.2019.
Hence, I record my findings to point No.1 to 3 in the affirmative and
point No.4 the Notice of Motion is allowed as per final order. Hence
following order:
ORDER
Notice of Motion 1435/19 is hereby allowed as under.
1. Exparte Order dt.29/01/2019 passed against defendant No.2(a)
and 2(b) is hereby set aside.
2. Delay in filing written statement of defendant No. 2(a) and 2(b)
is hereby condoned.
3. Written statement of Defendant No. 2(a) and 2(b) be read and
recorded.
4. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 24/01/2020 City Civil Court, Gr. MUMBAI
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Dictated on : 24/01/2020
Transcribed on : 28/01/2020
Checked on : 29/01/2020
Signed on : 01/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.02.2020 at 04.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 24.01.2020
Judgment/order signed by P.O. on 01.02.2020
Judgment/order uploaded on 03.02.2020
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