Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.117518 in SCSU No.86416
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1175 OF 2018
(CNR No.MHCC010037562018)
IN
S.C.SUIT NO.864 OF 2016.
(CNR No.MHCC010016962016)
Mr. Vishwakant Anant Patil }...PLAINTIFF.
Versus
M/s. Omkar Realtors & Developers }...DEFENDANTS.
Shri.Ghadigaonkar, learned advocate for the plaintiff.
Shri.Hamid, learned advocate for defendant No.1.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 29/01/2019)
1. This notice of motion is taken out by defendant No.1 for
condonation of delay caused in filing Written Statement. Read the
affidavit filed in support and reply filed by the plaintiff. Heard learned
Shri.Hamid, advocate for defendant No.1 & learned Shri.Ghadigaonkar,
advocate for the plaintiff. Perused the entire record.
2. Admittedly, there is delay of 440 days in filing the Written
Statement by defendant No.1 from the date of service of Writ of
Summons. Date of service of summons is relevant for considering the
said aspect as Rule 1 of Order 8 of CPC prescribes that defendant is
required to file Written Statement within 30 days from the date of
service of suit summons. Said Rule further prescribes that the court can
extend the time for filing written statement upto 90 days for reasons to
be recorded in writing. However, it is now well settled that said
provision is not mandatory and court can condone the delay beyond 90
days is sufficient cause is shown.
3. Learned advocate for defendant No.1 argued that there is
no intentional delay on the part of defendant No.1 in not filing the
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2 NM No.117518 in SCSU No.86416
written statement within the statutory period, defendant No.1 was
under impression that Writ of summons is not served on defendants as
the Notice of Motion for interim injunction was pending and hence,
written statement could not be prepared and filed inadvertently due to
which, defendant No.1 may be permitted to file its written statement to
contest the suit on merits by imposing certain costs.
4. As against this, learned advocate for plaintiff vehemently
opposed the application by submitting that just reason is not stated in
supporting affidavit to explain the delay hence, the prayer cannot be
accepted. He alternatively submitted that heavy costs shall be imposed
on defendant No.1 if the prayer is accepted.
5. Defendant No.1 is a Private Limited Company. Admittedly,
defendant No.1 has not filed written statement within statutory period.
The period of delay of 440 days caused filing written statement cannot
be accepted to be a small period. Record shows that plaintiff has
already filed affidavit of examinationinchief of PW1 & after the
matter was posted for considering the admissibility of documents, leave
was sought on behalf of defendant No.1 to register present Notice of
Motion. It is not in dispute that defendant No.1 was aware of the filing
of the suit as it is a matter of record that defendant No.1 contested the
Notice of Motion taken out by the plaintiff however, since learned
advocate for plaintiff submitted that prayer made in this Notice of
Motion may be accepted by imposing heavy costs on defendant No.1, I
am of the opinion that interest of justice will be protected if defendant
No.1 is permitted to file its Written Statement subject to payment of
certain costs by it to the plaintiff. Thus, an order:
ORDER
Notice of Motion No.1175 of 2018 is allowed subject to
cost of Rs.10,000/ (Rs.Ten Thousand Only) which shall be a
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condition precedent for filing the written statement by defendant
No.1. Defendant No.1 shall pay/deposit the amount of cost as
mentioned above on or before next date failing which this Notice
of Motion shall be deemed to have been rejected.
Date:29/01/2019. (P. P. RAJVAIDYA)
Dictated on : 29/01/2019. Judge, C.R.No.12,
Transcribed on : 31/01/2019 City Civil Court,
Checked on : 01/02/2019 Gr. Bombay.
Signed on : 02/02/2019.
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4 NM No.117518 in SCSU No.86416
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
02.02.2019 at 1.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 29/01/2019
Order signed by P.O. on 02/02/2019
Order uploaded on 02/02/2019
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