Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 SC6034.05
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Notice of Motion No. 1667 of 2019
In
BCCC Suit No. 6034 of 2005
(High Court Suit No. 703 of 2005)
Shirley Naresh Rajwani … Plaintiff
V/s.
M/s.Nensee Constructions Pvt.
Ltd. & Ors. … Defendants
Coram : H. H. THE PRINCIPAL JUDGE
M. W. CHANDWANI
Dated : 17th February, 2020
(C.R.No.19)
Advocate Ms. Dipali Majethiya i/b. Legal Vision for plaintiff.
Advocate Mr. Ghanshyam Upadhyay i/b. Law Juris for defendant nos. 1
and 2.
Defendant No. 3 and advocate absent.
O R A L O R D E R
By the present Notice of Motion, the defendant nos. 1 and 2
are seeking to re-call the order dated 16th January, 2014 of proceeding
against them without written statement and to permit defendant nos. 1 and
2 to file their written statement.
2 It is contended that defendant no.1 and 2 had appeared in the
Hon’ble High Court through one advocate Mr. Negandhi. Written statement
was notarized by defendant nos. 1 and 2 and was handed over to office of
advocate Mr. Negandhi. Thereafter, in view of enhancement of pecuniary
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jurisdiction, suit came to be transferred to City Civil Court. Advocate Mr.
Negandhi expressed his inability to appear. Therefore, all the papers
including vakalatnama were collected from Mr. Negandhi and were handed
over to new advocate Mr. Dalvi. Since the written statement was already
handed over to Mr. Negandhi, the defendants No.1 & 2 were under
impression that the same has been filed.
3 In the month of July, 2015 defendant no. 2 contacted Mr. Dalvi
to know the status and progress of the matter. Mr.Dalvi informed that he
will make enquiry with his junior who looked after the matter. Therefore,
he did not give satisfactory answer. The defendants No.1 & 2 engaged
another advocate and for seeking NOC of Mr. Dalvi for looking into the
matter as NOC of Mr.Dalvi was yet to be obtained. Therefore, the said
advocate was unable to file vakalatnama. When repeated requests were
made to Mr.Dalvi, he informed that he could not file his vakalatnama as
NOC given by Mr. Negandhi must be lying in his office and he would trace
out the same and will handover to defendant nos. 1 and 2, but he failed to
do so.
4 Thereafter, on change of mobile of defendant, advocate Mr.
Dalvi’s mobile number was deleted. After best efforts when he went to
office of Mr. Dalvi, it was found closed. Lastly, the defendant tried to get
NOC again from the original advocate Mr. Negandhi, but found that Mr.
Negandhi is no more and passed away. The defendants No.1 & 2 tried to
get certified copy of written statement from record. Since the written
statement was not found in the papers returned by Mr.Dalvi. They came to
know about the fact of passing no written statement order dated
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16/04/2019. Under these circumstances, the present Notice of Motion is
taken out for setting aside no written statement order and permission to
file written statement.
5 The application is opposed by the plaintiff on the ground that
the defendant appeared through out and has failed to file written
statement. It is also contended that suit is commercial suit within the
meaning of Section 2(1)(c) of the Commercial Courts Act, therefore, this
court has no jurisdiction to extend the time for filing the written statement
beyond the period of 120 days. No document has been filed to substantiate
the statement made by the defendants in their Notice of Motion. All the
contentions made by the defendants in Notice of Motion were denied. The
evidence and notes of arguments are already filed on record. The
defendant should have filed the complaint against the advocate. The
plaintiff prayed for dismissal of Notice of Motion.
6 Heard learned advocate for defendant no.1 and plaintiff.
7 It is contended on behalf of defendant that there was
negligence on the part of advocate, as he did not pursue the matter and nor
he filed written statement and for the negligence of advocate, party should
not suffer. According to him, though there is considerable delay, but fact
remains because of advocate’s default to which defendant nos. 1 and 2
were not aware, the written statement could not be filed. He submits that
the suit be decided on merit by allowing defendants to file written
statement. According to him, the recent amendment in the Civil Procedure
Code is not applicable to the present case, as the suit is of 2005. According
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to him, no doubt inconvenience is caused to the plaintiff, but that can be
compensated by paying cost. On the contrary, if the written statement is
not taken on record, the defendants will be deprived of defending their
case. Hence, prayed for setting aside no written statement order.
8 Per contra, learned advocate for plaintiff, vehemently
submitted that it is the commercial suit within the meaning of Section 2(1)
(c) of the Commercial Courts Act, 2015. Therefore, in view of amendment
to Code of Civil Procedure permission cannot be granted to file written
statement beyond the period of 120 days from the date of service of writ of
summons. Therefore, she prays for dismissed of Notice of Motion.
9 There is no dispute that in a commercial suit, the defendant
has to file written statement within 30 days from the date of service of writ
of summons. It is also settled position of law that in the commercial suit,
the court can not extend the time to file the written statement, beyond 120
days from the date of service of summons. The law has been reiterated in
the case of
SCG Contracts India Pvt. Ltd. V/s. K.S. Chamankar
Infrastructure Pvt. Ltd. and Ors., reported in MANU/SC/0227/2019, relied
by the plaintiff wherein the Apex Court has held that in the Commercial
Suit, the court has no power to extend the time to file written statement
beyond the period of 120 days. There is no dispute to this legal position.
But, the moot question before me for the consideration is, whether the
present suit, as claimed by the plaintiff is a commercial suit.
10 The Commercial Court Act, 2015 came in force with effect
from 23rd October, 2015. In Sub-Section 2(1)(c) of the Act, commercial
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dispute has been defined wherein categories of suits have been mentioned.
Likewise specified value has been defined under Section 6 of the said Act to
decide the jurisdiction of commercial court. Section 6 of the Act speaks that
the Commercial Court has jurisdiction to try all the suits and applications
relating to a commercial dispute of a specified value. Thus, when the
Commercial Court Act came in force, by virtue of section 15 of the said Act,
all pending suit of having value of more than one crore were treated as
Commercial Suit and were transferred to the Commercial Court. But the
fact remains that the value of the present suit calculated by the plaintiff, is
Rs.82,005,00/-, which is less than Rs.1 crore. Therefore, the suit was not
transferred to the Commercial Court under Section 15 of the Act.
11 Needless to say that with effect from 3rd May, 2018 the
Commercial Courts Act, 2015 was amended and specified value is brought
down up to Rs.3 lacs. This takes me to Section 19 of the amended Act
which reads as under
Section-19...
“Application of provisions of this Act to cases
filed on or after its commencement-Save as otherwise
provided, the provisions of this Act shall apply only to cases
relating to commercial disputes filed on or after the date of
commencement of this Act.”
12 Thus, in view of Section 19 of amendment Act, the
amendment is prospective and will not cover the suit having specified value
of more than three lacs filed prior to notified date i.e. 03rd May, 2018.
Although, the suit under caption is valued more than Rs.3 lacs, it is prior to
3rd May, 2018 i.e. the notified date of amendment. Therefore, it is not a
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commercial suit. In wake up this finding, let us see whether the case is
made out for taking written statement on record.
13 It is matter of record the initially suit was lying in the Hon’ble
High Court and in the year 2012 it was transferred to the City Civil Court.
It is the contention of the defendant that due to transferred of the suit
earlier advocate Mr. Negandhi showed his unability to attend City Civil
Court, though NOC of advocate Mr. Negandhi was handed over to advocate
Mr. Dalvi, he did not file the same in the court, consequently, he could not
file vakalatnama. The roznama of the case also shows that though advocate
Mr. Dalvi appeared and undertook to file vakalatnama, he did not appear
the matter. This support the contention of the defendant nos.1 and 2.
Mr. Dalvi did not take follow up nor inform to them.
14 It is settled principle of law that the litigant should not suffer
for the lapses done by the advocate. Even otherwise, it is desirable that the
matter should be decided on merit. For technical reason the substantial
justice can not be denied. The procedure is hand made of justice and for
advancing the justice. In the case of
Collector Land Acquisition, Anantnag
& anr. V/s. Mst. Katiji & Ors., (Supra), the Hon'ble Apex Court has held
that the expression “sufficient cause” employed by the Legislature in
Section 5 of the Indian Limitation Act,1963 is adequately elastic to enable
the Courts to do substantial justice to parties by disposing of matters on
merits.
15 Nothing has been brought on record that there was intentional
delay in filing written statement. No doubt, there is considerable delay and
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inconvenience is caused to the plaintiff, to which my mind heavy cost
would suffice the purpose. In view of this, I proceed to pass the following
order:
O R D E R
1. Notice of Motion no.1667/19 is made absolute in terms of
prayer clause (a).
2. The order dated 16th January,2014 transferring the case on
the list of undefended suit is hereby set aside on the
payment of costs of Rs.10,000/- to the plaintiff within two
weeks.
3. After payment of cost, the written statement of the
defendant be taken on record.
17/02/2020 (M. W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 17/02/2020
Transcribed on : 20/02/2020
Signed by H.H.J. on : 28/02/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 28/02/2020 (1.56 p.m.)
Name of the Judge H. H. THE PRINCIPAL JUDGE
Shri M. W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 17th February, 2020
Order signed by P.O. on 28th February, 2020
Order uploaded on 28th February, 2020
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