Interim Order 1

Order Details: Order below exhibit
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IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
ORDER BELOW APPLICATION AT EXHIBIT8
IN
COMMERCIAL SUIT NO. 10 OF 2019
TATA CAPITAL LIMITED & ORS ) … Plaintiffs.
Vs.
M. C. KARTHIKEYAN IYER & ORS ) ...Defendants.
Appearances:
Adv. Mr. P. S. Ranshu for the defendant No.1.
Adv. Mr. Nikhil Gupta i/b Wadia Gandhy & Co. for the plaintiff.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 7th March, 2022
ORDER BELOW EXHIBIT8
The defendant No.1 has filed this application for
permission to file the written statement.
2. It is the contention of the defendant No.1 that he is out of
country and due to restrictions of COVID19, there was delay in filing
the written statement.
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.. 2.. Order Below Exh.8 in COM. SU 10 of 2019
3. The application is opposed by the plaintiff by reply filed at
exhibit9. It is the contention of the plaintiff that writ of summons was
served on the defendant No.1, on 28.05.2019. Thereafter, by making
this application on 15.02.2021, the defendant No.1 has prayed for
permission to file the written statement. The defendant No.1 cannot be
allowed to file the written statement after expiry of 120 days. With
these contentions, the plaintiff has prayed to reject the application.
4. In spite of sufficient opportunity the defendant No.1, failed
to remain present and proceed with this application. Hence, no
argument of defendant No.1. Heard the learned advocate for the
plaintiff.
5. The present suit has been filed on 02.05.2019. Service
affidavit at exhibit3 filed on 28.01.2021 shows that vide postal
acknowledgment card exh.B1, the summons on defendant No.1 was
served on 28.05.2019. In view of Order V Rule 1 of the Code of Civil
Procedure, 1908, the defendant was liable to file written statement
within period of 30 days from date of service of suit summons. Said
period of 30 days expired on 28.06.2019. Said rule further provides that
for sufficient cause shown, the defendant can be allowed to file the
written statement within 120 days from date of service of suit
summons. It further provides that on expiry of such 120 days, the
defendant's right to file the written statement will be forfeited and
Court shall not allow the written statement to be taken on record.
6. It is the contention of the defendant No.1 that he was
abroad and due to pandemic he was unable to file written statement. As
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.. 3.. Order Below Exh.8 in COM. SU 10 of 2019
aforesaid the suit summons was served on 28.05.2019. Period of 30
days is expired on 28.06.2019. Period of 120 days extended limitation
expired on 28.09.2019. The present application is filed on 15.02.2021.
From the date of the service of the suit summons (28.05.2019) till
March2020. The period near about nine and half months was pre
pandemic period. The defendant No.1 was able to file written statement
within 120 days from the date of the service of the summons. There was
no outbreak of COVID19 during said period. The Hon'ble Supreme
Court in Suo Motu Writ Petition No.03 of 2020 excluded the limitation
from 15.03.2020 till 28.02.2022. Limitation of 120 days for filing the
written statement by defendant No.1 expired on 28.09.2019, which is
much prior to 15.03.2020. Hence, defendant No.1 cannot raise ground
of pandemic for condonation of delay.
7. The learned advocate for the plaintiff relied on judgment of
the Hon'ble Supreme Court in SCG Contracts (India) Private Limited
Vs. K.S. Chamankar Infrastructure Private Limited & Ors. (2019) 12
SCC 210 wherein it is held as under:
"A Perusal of these provisions would show that ordinarily a
written statement is to be filed within a period of 30 days.
However, grace period of a further 90 days is granted which the
Court may employ for reasons to be recorded in writing and
payment of such costs as it deems fit to allow such written
statement to come on record. What is of great importance is the
fact that beyond 120 days from the date of service of summons,
the defendant shall forfeit the right to file the written statement
and the Court shall not allow the written statement to be taken
on record. This is further buttressed by the proviso in Order VIII
Rule 10 also adding that the Court has no further power to
extend the time beyond this period of 120 days"
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.. 4.. Order Below Exh.8 in COM. SU 10 of 2019
8. In view of aforesaid judgment the defendant No.1 has
forfeited his right to file written statement. Hence, he cannot be allowed
to file it on record. Therefore, the application is liable to be rejected.
Hence, I pass following order.
ORDER
1. Application exhibit8 is rejected.
2. Suit to proceed without written statement of defendant No.1.
3. Costs shall follow the event.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 07.03.2022 Mumbai.
Dictated on : 07.03.2022
Typed on : 08.03.2022
Signed by HHJ on : 08.03.2022
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.. 5.. Order Below Exh.8 in COM. SU 10 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.03.2022 AT 11.10 a.m.
UPLOAD DATE AND TIME
(Mr. S. V. AMBEKAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
07.03.2022
Judgment/order signed by P.O. on 08.03.2022
Judgment/order uploaded on 09.03.2022
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