Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1678/19
MHCC010046092019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1678 OF 2019
IN
S.C. SUIT No. 1324 OF 2018
Sulochana Aithappa Anchan ...Plaintiff.
VERSUS
1. Mrs. Shashikala Ravindra Salian & Ors. … Defendants.
Appearance
Learned Advocate Mr. Prathamesh Seth for the plaintiff.
Learned Advocate Mr. Ravindra Satale for the defendants.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 20th August, 2022
O R D E R
This notice of motion is taken out by the defendants for
condonation of delay in filing written statement.
2. The plaintiff has resisted this motion by affidavitinreply.
The defendants by rejoinder denied the contentions made in the reply
by the plaintiff and requested to allow the notice of motion.
3. Heard learned Advocate for the defendants. No argument
of the plaintiff.
4. Read the affidavitinsupport of the notice of motion, reply
and rejoinder. It is the contention of the defendants that defendant
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No.2 is the husband of defendant No.1 and defendant No.3 is her
daughter. The plaintiff has not served the suit summons on defendant
Nos.1 and 2. She intentionally served suit of summons on defendant
No.3. The copy of suit summons was kept at the door of the office of
defendant No.3. Defendant Nos.1 and 2 got information about the suit
from defendant No.3. Thereafter, on 13.11.2018, the defendants
appeared before the Court with their Advocate and waived service of
suit summons upon defendant Nos.1 and 2. Therefore, by these
contentions defendant No.3 is served on 05.09.2018 and defendant
Nos.1 and 2 were served on 13.11.2018.
5. It is further contention of the defendants that the case was
referred to mediation. As the matter was pending before the mediation,
the defendants have not filed written statement. It is further contention
of the defendants that, defendant No.2 is not keeping well and
defendant No.1 was required to look after all affairs of the family.
Defendant No.3 has joined new job. It is further contention of the
defendants that in spite of sending notice, the plaintiff has not supplied
the documents. Time was required for collecting the documents and
therefore, there is delay. According the plaintiff, there is delay of more
than 120 days and therefore, written statement cannot be accepted.
The plaintiff has relied on the judgment in case of M/s. SCG Contract
India Private Limited V/s. K.S. Chamankar Infrastructure Private
Limited & Others. In this case in respect to the commercial dispute, it
was held that written statement beyond 120 days cannot be accepted in
commercial suits. The Hon'ble Supreme Court in case of Zolba V/s.
Keshao & Ors. 2008 (3) Bom C.R.1 (Supreme Court), held that delay
can be condoned and written statement can be accepted even after
expiry of 90 days from the date of service of suit summons. It is held
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that, it cannot also be forgotten that in an adversarial system, no party
should ordinarily denied the opportunity of participating in the process
of justice dispensation.
6. In case before me, defendant Nos.1 and 2 appeared and
waived service of suit summons. The suit summons on defendant No.3
was served on 05.09.2018. This notice of motion is filed on 18.04.2019
and there is delay about 195 days as stated in the motion. Roznama
dated 13.11.2018 reads that suit was referred for mediation. On
27.12.2019 report of mediation was received and thereafter, the suit
was proceeded. Considering these facts, as the suit was pending in
mediation delay can be condoned. It is also contention of the
defendants that defendant No.2 was not keeping well and defendant
No.3 was engaged in new job. Considering the reasons stated in the
notice of motion, I am of the view that the delay can be condoned
however, it shall be subject to costs. Hence, I pass following order :
O R D E R
1. Notice of Motion No.1678/2019 is allowed in terms of prayer clause
(a) and (b) of the notice of motion subject to costs of Rs.2000/
(Rupees Two Thousand Only).
2. Defendant nos.1 to 3 are allowed to file written statement.
3. Costs shall be paid to the plaintiff.
4.Notice of Motion No.1678/2019 is disposed of accordingly
(Rajesh A. Sasne)
Date : 20.08.2022 Judge,
Dictated on : 20/08/2022 City Civil Court,
transcribed on : 22/08/2022 Mumbai.
Signed on : 23/08/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
23.08.2022 at 12.20 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 20/08/2022
Order signed by P.O. on 23/08/2022
Order uploaded on 23/08/2022
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