Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1751/2019 in Suit No.4674/2011
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1751 OF 2019
CNR NO.: MHCC010047932019
IN
SUIT NO. 4674 OF 2011
(HIGH COURT SUIT NO.2784 OF 2011)
Khimchand Prithviraj Kothari ...Plaintiff
Versus
1. Jairam Morarjee Kapadia (Deleted pursuant to
Order dated 24th June, 2014)
1(a) Kumar Jairam Kapadia
and Ors. ...Defendants
Appearances:
Advocate Mr.Jain for the plaintiff.
Advocate Ms. Harshali Parab for defendant Nos. 5 to 8.
Advocate Mr. Parekh for defendant Nos. 1(a) and 1(b).
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 15th NOVEMBER, 2019.
ORAL ORDER
This Notice of Motion is filed by defendant Nos. 1(a) and 1(b) to
condone delay in filing Written Statement in the Suit.
2. They have stated that original defendant passed away and then
these defendants were brought on record by Order dated 24th June,
2014. They have further stated that they were no directions given by
-- 1 of 5 --
:2: N.M. No.1751/2019 in Suit No.4674/2011
the Hon'ble Court to file Written Statement. They have further stated
that by Order dated 17th October, 2014, Notice of Motion No.3641 of
2011 filed by plaintiff for seeking interim reliefs was dismissed on the
grounds that it was not pressed by the plaintiff. Defendants have further
stated that plaintiff had filed a fresh Notice of Motion No.3827 of 2014
and the said Notice of Motion was dismissed disentitling him to the
discretionary relief by Order dated 5th September, 2015.
3. They have further stated that they were informed by defendant
Nos. 5 to 8 that matter is likely to be settled between the plaintiff and
them and therefore, no Written Statement was filed by them. They have
further stated that original defendant No.1 entered into Lease Deed
with defendant Nos. 5 and 6 and the Deed of Conveyance with
defendant Nos. 7 and 8. They have further stated that the original
defendant No.1 executed the said Agreements by informing about the
litigation to defendant Nos. 5 to 8. Therefore, as per the Clauses in the
Agreement it was cleared that in any event if the Hon'ble Court awards
any compensation to defendant Nos. 1(a) and 1(b) being legal heirs of
original defendant No.1, the same would be borne and paid by
defendant Nos. 5 to 8 and therefore, defendant Nos. 1(a) and 1(b) did
not steps to file their Written Statement. They have further stated that
after the matter was placed for hearing of draft issues, their Advocates
advised them that as the matter is not settled between plaintiff and
defendant Nos. 5 to 8, it was crucial to file Written Statement and
prayed that delay in filing Written Statement be condoned.
4. Plaintiff has filed reply and denied all material contentions of
defendants. He has stated that in the Notice of Motion it is not
mentioned as to how many days delay is claimed to be condoned. He
-- 2 of 5 --
:3: N.M. No.1751/2019 in Suit No.4674/2011
has further stated that the amendment was duly served upon the
defendant No.1(a) and 1(b) in the year 2014. He has further stated that
it is not a good reason to that the Notice of Motion got dismissed,
therefore, defendants were prevented from filing Written Statement.
Plaintiff has further stated that at no point of time, there were any
settlement talks between him and defendant Nos. 5 to 8. He has further
stated that this piece of lie is invented to create an impression and a
lame excuse to pray for condonation of delay in not filing written
statement and prayed to reject the Notice of Motion.
5. Ld. Counsel for the defendants cited Judgment in case of
Methodist Episcopal Church, Nagpur vs. Methodist Church In India,
Mumbai and others reported in [2009] (4) Mh.L.J. in which it is held
that, “where other interim applications are decided or are pending and
delay occurs in filing Written Statement that could be sufficient ground to
condone the delay.” In the case in hand, defendants themselves have
stated that the second Notice of Motion filed by plaintiff was dismissed
in the year 2015 and since 23rd October, 2015 matter was kept of Draft
Issues and present Notice of Motion is filed on 12.04.2019. Therefore,
facts of the cited case and in hand are different. Therefore, this case law
is not applicable to the present case.
6. It appears, it is nowhere stated in the Code of Civil Procedure,
1908 that when the Court gives directions then defendant are supposed
to file Written Statement. As per the CPC, defendant has to file Written
Statement within 90 days and there is no pre condition that Court has
to give direction to that effect to file Written Statement. Therefore, the
contention of defendant Nos. 1(a) and 1(b) that they were no directions
from the Court to file Written Statement therefore, Written Statement is
-- 3 of 5 --
:4: N.M. No.1751/2019 in Suit No.4674/2011
not filed is without any substance.
7. Defendants have stated that they were informed that there was
settlement talks between plaintiff and defendant Nos. 5 to 8, therefore,
they did not file Written Statement. Plaintiff has denied that there was
settlement talks between the parties. But the facts that plaintiff did not
file Draft Issues and proceed with the matter and that defendant Nos. 5
to 8 had not specifically denied that there were settlement talks
between the parties, it raised possibilities that there may be settlement
talks of whatsoever nature between the parties. It appears, in the
present Suit yet issues are not framed and parties have not lead
evidence. Hence, it appears, if defendants are allowed to file Written
Statement, it will not cause grave harm to any of the parties. But there
is inordinate delay in filing Written Statement by defendants. To decide
the case on merits fully and finally, it will be proper to grant
opportunity to defendants to file Written Statement subject to cost for
delay caused by them. Hence, following Order:
ORDER
1. Notice of Motion No.1751 of 2019 is allowed, subject to cost of
Rs.5,000/ to be given by defendant Nos. 1(a) and 1(b) jointly to
plaintiff.
2. Notice of Motion No.1751 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 15.11.2019. City Civil Court,
Gr. Bombay.
Dictated on : 15.11.2019
Transcribed on : 15.11.2019
Signed on : 15.11.2019
-- 4 of 5 --
:5: N.M. No.1751/2019 in Suit No.4674/2011
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.11.2019 At 04:35 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
15.11.2019
Judgment/Order signed by P.O. on 15.11.2019
Judgment/Order uploaded on 19.11.2019
-- 5 of 5 --