Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF SESSIONS FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO.1730 OF 2020
(CNR No.MHCC010050562020)
IN
COMMERCIAL SUIT NO.98 OF 2021
Yogesh Bafna, Director /Signatory of P.P.
Bafna Ventures Private Limited ]..Applicant
(Defendant No.3)
In the matter between
Nippon Express (India) Pvt. Ltd. Company
And
Branch office at GD2, Ground Floor,
“D” Wing, Gundecha Onclave, Kherani Road,
Saki Naka, Andheri (East) ]....Plaintiff
V/s
P.P. Bafna Ventures Pvt. Ltd. & Ors. ]...Defendants
Appearances:
Ld. Adv. Pranali Morkar for plaintiff.
Ld. Adv. Ravi Gurnani for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32)
DATED : 03rd April, 2021.
ORDER
The defendant by this notice of motion seeks to condone
the delay in filing the written statement and also seeks permission to
file written statement.
2. Heard learned Advocate for the defendant and learned
Advocate for the plaintiff.
-- 1 of 5 --
Order on NM No.1730-2020 .. 2..
3. It is the contention of defendant that the defendant had
appeared in the suit on 01.12.2018. It is contended that the defendant
had raised preliminary objection regarding jurisdiction of this Court to
entertain the suit.
4. The suit was referred to mediation on 17.07.2019.
Thereafter there was lockdown due to Covid19 pandemic. It is
submitted that the defendant could not file written statement in time. It
is contended by the defendant that delay in filing written statement be
condoned and the defendant be permitted to file the written statement.
5. The notice of motion is resisted by the plaintiff. It is
submitted that reference of the suit for mediation has no concern with
filing of the written statement. It is submitted that the defendant was
served with writ of summons in the year 2018. On 17.12.2018 the
matter was adjourned to 12.02.2019 for filing written statement. The
order for referring the suit to mediation was passed on 17.07.2019.
The period of 120 days to refer the suit for mediation had lapsed. It is
stated that the notice of motion be dismissed.
6. Initially, the suit was registered on 18.12.2018 as Short
Cause Suit. On 06.02.2020 the suit is converted to Commercial Suit
No.112/2020. Due to Covid19 pandemic the dates were given from
13.04.2020 till 05.10.2020. The dates were given by the Court.
7. It would be appropriate to refer ChapterV of the
Commercial Courts Act,2015.
Section 15 (3)Transfer of pending cases reads as under:
“(3) Where any suit or application, including an application under the
-- 2 of 5 --
Order on NM No.1730-2020 .. 3..
Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a
commercial dispute of Specified Value shall stand transferred to the
Commercial Division or Commercial Court under subsection (1) or sub
section (2), the provisions of this Act shall apply to those procedures that
were not complete at the time of transfer.”
8. The Section 15(4) and proviso of Commercial Courts
Act,2015 reads as under:
“4. The Commercial Division or Commercial Court, as the case may
be, may hold case management hearings in respect of such transferred suit
or application in order to prescribe new timelines or issued such further
directions as may be necessary for a speedy and efficacious disposal of such
suit or application in accordance [with Order XVA] of the Code of Civil
Procedure,1908 (5 of 1908).
Provided that the proviso to subrule(1) of rule 1 of Order V of the
Code of Civil Procedure, 1908 shall not apply to such transferred suit or
application and the Court may, in its discretion, prescribe a new time
period within which the written statement shall be filed.”
9. The proviso points out that proviso to subrule (1) of rule 1
of Order V of the Code of Civil Procedure, 1908 shall not apply to
transfer the suit the Court may, in its discretion, prescribe a new time
period within which the written statement shall be filed.
10. So also, on 23rd March 2020, the Supreme Court passed an
order in the Suo Moto Writ Petition (civil) no(s).3/2020 whereby the
apex court had extended the time for filing petitions / applications /
suits / appeals/all other proceedings in Courts/Tribunals across Indian
with effect from 15.03.2020. The relevant paragraph from the said
order is reproduced herein below for the sake of brevity and
convenience:
“To obviate such difficulties and to ensure that
lawyers/litigants do not have to come physically to file such proceedings in
respective Courts/Tribunals across the country including this Court, it is
hereby ordered that a period of limitation in all such proceedings,
-- 3 of 5 --
Order on NM No.1730-2020 .. 4..
irrespective of the limitation prescribed under the general law or Special
Laws whether condonable or not shall stand extended w.e.f. 15th March
2020 till further order/s to be passed by this Court in present
proceedings.”
11. The proviso of Section (4) of Section 15 of the Commercial
Courts Act, 2015 gives discretion to prescribe a new time period in
which the written statement shall be filed.
The present suit is converted to Commercial Suit on
06.02.2020 and further there was lockdown because of Covid19
pandemic imposed by the Government. Considering the facts and
circumstances, the delay in filing the written statement needs to be
condoned and the defendant is permitted to file the written statement.
In the result, following order is passed.
O R D E R
1. The Notice of Motion No.1730/2020 is allowed.
2. The delay in filing the written statement is condoned.
3. The defendant is permitted to file written statement in the suit.
4. The defendant to file written statement in the suit by 12.04.2021.
5. The Notice of Motion No.1730/2020 stands disposed of.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 03.04.2021 Gr.Bombay at Mumbai.
Dictated on : 03.04.2021
Typed on : 07.04.2021
Signed by H.H.J.on : 07.04.2021
-- 4 of 5 --
Order on NM No.1730-2020 .. 5..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.04.2021 at 11.00 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
03.04.2021
Judgment/order signed by P.O. on 07.04.2021
Judgment/order uploaded on 09.04.2021
-- 5 of 5 --