Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1594 OF 2018
IN
SUIT NO.2135 OF 2017
Deepak Dalichand Mehta ...Plaintiff.
V/s.
M/s. JDS Creation Pvt.Ltd. & ors. ...Defendants.
Appearances:
Ld. Adv Mr.Paras Vira for plaintiff.
Ld. Adv. Mr.Tushar Chavan for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 12th March,2019
ORDER
By way of this notice of motion defendants prayed for recalling
the order of 'no written statement' dt.22.04.2018 and to condone the
delay of 45 days in filing written statement on record by defendant
Nos.1 to 3.
2. In supporting affidavit of Mr.Sanjay Sahani, director of defendant
No.1/company submitted that plaintiff has this suit for recovery of
Rs.11,39,004/ with interest @ 12 % per annum against defendants.
Writ of summons came to be served upon defendants in the month of
December,2017. However, same was not received by defendants as it
was in the hands of the legal manager Mr.Nitin Mithra. Upon getting
and received writ of summons and copy of plaint, Nitin Mithra ought to
have contacted the present Advocate and instructed him to file written
MHCC01-004942-2018
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statement in the matter. However, save and except telephonic
instructions Nitin Mithra failed to forwards the papers and proceedings
adopted by plaintiff in the present matter. Thereafter, Nitin Mithra left
the defendant No.1/company in the middle of January,2018 in short
notice of three days. However, did not hand over the papers and did
not up update the company and his immediate superior about the
present case. Therefore, present Advocate on record used to call him
for the present matter and it was not able to provide necessary
information as the papers were misplaced and he could not look out the
same in the office. In or about 09.02.2018 said papers located in the
drawer were Nitin Mithra used to regularly seat. Thereafter,
immediately they forwarded the papers to the Advocate and instructed
him to file vakalatnama and to file written statement on record.
3. However, when present Advocate prepared written statement on
23.02.2018 and same was sent to Mumbai for filing the same.
Thereafter, their Advocate was unwell and he could not able to take
matter on board to file written statement on record. On 26.03.2018
when the matter was kept for filing vakalatnama and written statement
the Court was vacant and matter was adjourned on 02.04.2018. On
that day when the matter was called on the Court declined to accept
written statement of defendant Nos.1 to 3 as it was as per City Civil
Court Rules and passed order 'no written statement'.
4. In such circumstances, defendant submitted that they have fairly
disclosed the facts to point out the reasons for delay in filing written
statement. Hence, on account of bonafide reasons, which is beyond
their control, the delay in filing written statement be condoned and
order dt.02.04.2018 be recalled and permit them to file written
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statement on record. If they have not permitted it will cause great
prejudice to defendants. On the other hand no harm or prejudice will
be caused to plaintiff if notice of motion is allowed. In such
circumstances, they prayed that notice of motion be made absolute and
delay of 45 days be condoned in the interest of justice.
5. After service of notice of motion upon plaintiff, learned counsel
for plaintiff has filed reply and objected the notice of motion. They
submitted that notice of motion has no substance. The period of delay
of 45 days is not properly explained. The reasons or cause which
precluded or prevented them in filing written statement cannot be held
to be proper when the period of 90 days was also availed by them.
Therefore, notice of motion is devoid of any substance and merits, it
deserves to be rejected with costs. Even there is no supporting
documentary evidence, which reveals the ignorance of law by
defendant and also by their Advocate and it cannot be a ground for this
Court to exercise powers vested under O.VIII R.1 and 9 of C.P.C. As
such, they prayed that notice of motion, which is malafide, be
dismissed with heavy costs.
6. Heard learned Advocate for both the sides. Perused the record
and submissions.
7. Admittedly, the suit was tendered before this Court for recovery
of Rs.11,39,004/. The writ of summons as per service affidavit came
to be served upon defendant by RPAD as per postal track system. Even
learned counsel for defendant undertake to file vakalatnama on
12.02.2018. However, it was not tendered. When on 02.04.2018
defendants filed vakalatnama, but period of 90 days over from service
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of writ of summons, therefore, this Court on 02.04.2018 passed the
order 'suit be proceeded without WS against defendant no.1 to 3'.
Thereafter, this notice of motion came to be tendered on 05.04.2018
and matter adjourned to 02.07.2018. After going through the
submissions of learned counsel for plaintiff they have put forth the fact
that notice of motion received by Nitin Mithra, who was employee of
defendant, but did not inform the defendants. Which is clear that,
defendants were having knowledge that suit was going on and written
statement to be filed in it. But when Nitin Mithra, who was employee
of the defendant No.1/company, then whatever the act done by him the
company and their Directors are responsible for the act done by the
employees. Leaving the service of defendant No.1 company by Nitin
Mithra without informing about service of writ of summons in this case
cannot be a ground attributed to condone the delay to place written
statement on record.
8. In view of strict provisions of O.VIII R.1 of C.P.C. within 30 days
or extended period of 90 days at least, defendant should have tendered
their written statement on record. It is even admitted fact that in the
month of December,2017 these defendants had been served with writ
of summons. Therefore, even if we considered on 02.04.2018 the date
of appearance of learned Advocate for defendants before this Court,
but defendants have sought time on 12.02.2018 to file vakalatnama. It
means that from 12.02.2018 defendants are having knowledge to file
their written statement within stipulated period, which is intentionally
failed to be complied by them. Therefore, negligence on their part
cannot be allowed to invoke extraordinary jurisdiction of this Court. It
is lethargic on the part of these defendants. But after securing papers in
the drawer of Nitin Mithra on 09.02.2018 till moving the present notice
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of motion the sufficient period availed by defendants to tender their
written statement on record. Therefore, lapses on the part of
defendants in filing written statement on record cannot be considered
for the reasons mentioned by them to condone delay by setting aside
order of 'no written statement' on 02.04.2018. As such, I do not find
any substance and merits in the notice of motion.
9. Learned counsel for plaintiff submitted that delay is more than 45
days, as contended by defendants. Defendants have not tendered their
written statement within statutory period of 90 days and tendered this
notice of motion for condoning delay without any plausible
explanation. Therefore, there is no reason to interfere in the order
passed dt.02.04.2018. Hence, notice of motion deserves to be rejected.
In such circumstances, it will be proper to direct parties to bear their
costs and hence, I pass the following order :
O R D E R
1. Notice of Motion No.1594 of 2018 in Suit No.2134 of 2017
is rejected.
2. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 12/03/2019 City Civil Court, Gr. MUMBAI
Dictated on : 12.03.2019
Transcribed on : 13.03.2019
Signed on : 13.03.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.03.2018 at 3.00 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 12.03.2018
Judgment/order signed by P.O. on 13.03.2018
Judgment/order uploaded on 13.03.2018
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