Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1491 OF 2018
IN
S.C. SUIT NO.375 OF 2018
M/s. Shaparia Marine and
Management Co. … Plaintiffs
V/s.
The Chairman, Mumbai Port Trust,
Mumbai & Others. … Defendants
Appearances :
Ld. Adv. K.D. Shukla for plaintiff.
Ld. Adv. Nikunj Mehta a/w Tulsi for defendant no.1 to 5.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 26th June, 2019
ORDER
Defendant nos.1 to 5 have taken out this notice of motion
to condone the delay in taking out the notice of motion and to allow
them to file their written statement on record.
2. It is argued on behalf of the defendant nos.1 to 5 that as
per order dated 17.01.2018 the Hon'ble High Court has allowed these
defendants to file their written statement within four weeks from the
date of order. Thereafter this suit is transferred from Hon'ble High
Court to this Court. In this Court this suit was taken out for first time
on 27.02.2018. Because of said transfer as well as transfer of concern
employee defendant nos.1 to 5 could not file their written statement
within time. Their valuable rights and interest are involved in the
matter. So also it is matter of public money. The delay is not
MHCC010044692018
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intentional. Therefore they may be allowed to file their written
statement by condoning the delay.
3. Ld. Counsel for plaintiff has resisted this application on the
ground that as per Hon'ble High Court order dated 17.01.2018 four
weeks time is over by 17.02.2018. Now said time cannot be extended.
Defendants were well aware about said time limit. Despite knowledge
they kept mum. Therefore the delay is intentional one. So the prayer
may not be allowed for taking written statement on record.
4. It is a matter on record that when the matter was in the
Hon'ble High Court there is order dated 17.01.2018 whereby liberty
was given to defendant nos.1 to 5 to file their written statement within
four weeks i.e. on or before 17.02.2018. Now it is the contention of
plaintiff that as said time is over this Court cannot grant the extension
of time. In my opinion the Hon'ble High Court has passed said order in
its original jurisdiction when the suit was before Hon'ble High Court.
Now suit is transferred to this Court. If the delay is properly explained
then this Court has every power to condone the delay.
5. The Ld. Counsel for defendants relied on two citations.
Both the citations are of Hon'ble Apex Court, first on is of Salem
Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI),
while the second one is in the matter of Chinnamarkathian and Ors.
Vs. Ayyavoo and Ors. I have gone through both the citations. It is
observed that the object of the code is not to promote failure of justice.
Section 148, therefore to be read to mean that where sufficient cause
exists, the Court has power to extend the time beyond 30 days. No
doubt it is settled law that Court should not be too technical to deprive
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the parties from their substantial justice. As far as possible matter must
be decided on merit by giving full and fair opportunity to both the sides.
6. In addition to it I may say that we have to see the intention
behind order dated 17.01.2018. It was the intention to allow the
defendant to file their written statement on record. So in order to give
finality to said intention it is desirable to condone the delay and to take
written statement on record. At the most certain cost can be imposed.
With this I proceed to pass the order.
ORDER
1. NM No.1491/18 in SU No.375/18 is hereby allowed.
2. The delay of 44 days in taking out the notice of motion is hereby
condoned on payment of cost of Rs.10,000/ to be paid to the
plaintiff within four weeks or deposit it in the Court during
aforesaid period.
3. After compliance of cost order written statement be taken on
record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 26/06/2019 City Civil Court, Gr. Mumbai
Dictated on : 26.06.2019
Transcribed on : 26.06.2019
Signed on : 27.06.2019
sbk/
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NM 1491/2018 .. 4 .. Suit No.375/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
29.06.2019 4.10 p.m. Sanjay B. Kaskar
(StopGap Stenographer)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
26.06.2019.
Judgement/order signed by P.O on 27.06.2019.
Judgement/order uploaded on 29.06.2019.
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