Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion
No. 1603 of 2019 .. 1..
MHCC010072012016
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1603/2019.
IN
S. C. SUIT NO.1749/2016
Yes Bank Ltd. ...Applicant.
(Defendant)
In the matter of :
Mr. Surinderpal Chamanlal Aggarwal ...Plaintiff
V/s.
Yes Bank Ltd. ...Defendant.
Appearances :
Adv Shahzad Pandey for plaintiff.
Adv. Chandni Bhat for defendant.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 18/10/2022
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Order on Notice of Motion
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ORDER
Defendant has taken out this Notice of Motion for setting
aside exparte order dated 03.09.2018, to condone delay in filing
written statement and to take on record the written statement.
2. Heard Ld. Advocate Chandni Bhat for defendant and Ld.
Advocate Shahzad Pandey for plaintiff. Ld. Advocate for the defendant
submitted that defendant had marked debit freeze on the account of the
plaintiff for temporary period. Due to structural changes and reshuffling
in the bank, though written statement was ready, could not be filed in
the Court. There was no authorized officer available to file the written
statement. There was already delay in the suit and defendant has not
occasioned the delay. Defence raised by the defendant is important.
Public money is involved. Issue is only regarding compensation. Thus by
relying upon the judgments in Bharat Karla Vs. Raj Kishan Chabra,
Civil Appeal No.3788 of 2022 (The Hon’ble Supreme Court) and
Kailash Vs. Nankhu and Ors., (2005) 4 SCC 480, she urged that the
delay be condoned and the written statement of the defendant be taken
on record.
3. Ld. Advocate for the plaintiff submitted that the grounds
raised by the defendant for condoning delay are flimsy. The defendant
could have replaced the Constituted Attorney. The affidavit in support
of the Notice of Motion is not signed by the deponent. Summons was
served upon the defendant on 16.08.2016. There is abnormal delay.
The delay is even not specified. Nor it is explained. Plaintiff is a senior
citizen. If the Notice of Notion is allowed, it will cause prejudice to the
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plaintiff. The written statement sough to be tendered is not in proper
form. The pleading is not verified. In the above circumstances, he urged
that the Notice of Motion be dismissed.
4. In view of the rival contentions and submissions of both the
parties, following points arise for my determination to which findings
have been recorded for the reasons discussed below:
Sr.No. POINTS FINDINGS
1. Whether there is sufficient
cause to condone the delay
in filing written statement? ...No...
2. Whether written statement
can be taken on record?
...No...
3. What Order? Notice of Motion is
dismissed
REASONS
As to Point Nos.1 to 3:
5. Perused Notice of Motion, supporting affidavit, affidavit in
reply and the record of the suit. It is undisputed that writ of summons
was served upon the defendant on 22.10.2016. The defendant appeared
in the suit on 16.12.2016 and thereafter filed reply to Notice of Motion
No.3103/2016 which was taken out by the plaintiff. The Notice of
Motion No.3103/2016 is disposed of on 26.02.2018 as withdrawn.
Thereafter, vide order dated 03.09.2018, as defendant failed to file
written statement, the matter proceeded without written statement of
the defendant. The draft Notice of Motion is tendered by the defendant
on 18.04.2019. It is pertinent to note that the defendant, though prayed
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for condonation of delay, the exact delay in not specified either in the
prayer clause or in the supporting affidavit.
6. On perusal of the affidavit filed in support of the Notice of
Motion, it reveals that the deponent has not signed the affidavit. Notary
has signed and has affixed his stamp, but in absence of the signature of
the deponent, in law there is no affidavit. This infirmity goes to the root
of the matter. This circumstance coupled with the nonspecification of
the period of delay reflects laxity and gross negligence on the part of
the defendant in pursuing the matter.
7. In the judgment of Kailash Vs. Nankhu and Ors. (supra),
the Hon’ble Apex held as under
Considering the object and purpose behind enacting Rule 1 of Order
VIII in the present form and the context in which the provision is
placed, we are of the opinion that the provision has to be construed
as directory and not mandatory. In exceptional situations, the court
may extend the time for filing the written statement though the
period of 30 days and 90 days, referred to in the provision, has
expired.
8. In Bharat Karla Vs. Raj Kishan Chabra (supra), by relying
upon the above authority, the Hon’ble Apex Court condoned the delay
by observing that the delay could be compensated with costs but
denying the benefit of filing of the written statement is unreasonable.
Both the above authorities are relied upon by the Ld. Advocate for the
defendant in support of her arguments.
9. In the light of the above authorities, the written statement
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tendered after the period prescribed in Order VIII Rule 1 of CPC can be
taken on record, provided defendant is able to explain the delay. If the
case of the defendant is considered on merit, the cause for delay is
given as under
i) Settlement talks were going on between the parties.
ii) Earlier Constituted Attorney could not continue with the
defendant bank as Authorised Signatory.
iii) Defendant bank was undergoing structural changes in its
department, therefore, it was unable to nominate any lawful
Attorney to execute and perform deeds, acts and to appear in the
matters on behalf of the defendant bank.
10. Defendant has not produced any material in support of any
of the aforesaid grounds. The statements made in support of the above
grounds in the supporting affidavit are not even properly affirmed. The
delay is around 2 and half years. In these circumstances, in my
considered view, the delay is not properly explained. Ld. Advocate for
the defendant tried to argue that the suit was already delayed and the
defendant was not responsible for the delay. However, this can not be
an explanation of the delay caused by the defendant in filing written
statement. Furthermore, the importance of the defence raised by the
defendant can not be a consideration to condone the delay. The
defendant has failed to explain the delay caused in filing written
statement. Therefore, the written statement of the defendant can not be
taken on record. Thus point Nos.1 and 2 are answered in the negative
and following order is passed:
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ORDER
1. Notice of Motion No.1603 of 2019 is dismissed with costs.
2. Notice of Motion No.1603 of 2019 disposed of accordingly
(SHRI S.B.PAWAR )
Judge
Dt.:18/10/2022 City Civil Court, Gr. Mumbai
Declared on : 18.10.2022
Direct Typedon : 18.10.2022
Checked on : 19.10.2022.
Signed on : 20.10.2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.10.2022 at 03.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.10.2022
Order signed by P.O. on 20.10.2022
order uploaded on 20.10.2022
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