Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1808/2019 ..1.. L.C. Suit No.4064/2013
MHCC01-005130-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1808 OF 2019
(CNR NO. : MHCC01-005130-2019)
IN
L.C. SUIT NO. 4064 OF 2013
Mr. Mahadev laxman Patade )
Residing at 415/D, Anita Co-operative )
Housing Society, Kandar Pada, )
Waman Rao Bhoir Mar, Dahisar (West) )
Mumbai – 400 068 )....Plaintiff
V/s.
1. Mumbai Municipal of Gr. Mumbai )
a Corporation incorporated under the )
Mumbai Municipal Corporation Act, )
1888 having its head office at Mahapalika )
Marg, Fort, Mumbai - 400 001 )
2. Real Gem Buildtech Pvt. Ltd. )
Having its registered office at DB House, )
Gen A.K. Vaidya Marg, Goregaon (East), )
Mumbai – 400 063 )
Through its Managing Director )
Mr. Vinod Goenka )....Defendants
APPEARANCE:-
Ld. Adv. K. R. Tiwari for the plaintiff.
Ld. Adv. Meena Dhuri for the defendant No.1/MCGM.
Ld. Adv. Sayyed Tabassum Achhan along with Heena Goradia i/b M/s
Wadia Gandhy & Co. for the defendant No.2.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 4th FEBRUARY, 2021.
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O R D E R
This Notice of Motion is taken out by defendant No.2
praying to set aside the order dated 30.10.2015 & permit it to file its
written statement.
2. In the affidavit filed in support of Notice of Motion, it is
averred that defendant No.2 had appeared on 11.11.2014. Thereafter,
defendant No.2 had filed various replies, written statement, affidavits in
various proceedings including suits, notice of motion and writ petition
both civil and criminal filed before this court and Hon'ble Bombay High
Court by plaintiff. Defendant No.2 had appeared diligently all the
aforesaid matters. Defendant No.2 was attempting to get the documents
and the facts for filing the written statement. Defendant No.2 is huge
organization and therefore, it needed considerable time for documents
to be located and the facts to be collated. Therefore, defendant No.2
could not file its written statement in time. Delay is caused however,
same is not deliberate. If delay is not condoned, defendant No.2 will not
get opportunity to contest the suit. Therefore, defendant No.2 prayed
for allowing its notice of motion.
3. Plaintiff has resisted the application by filing its detail reply.
According to him, no sufficient cause is shown. The delay is intentional,
deliberate and malafide. Documents are filed by defendant No.2 in
other proceeding in which defendant No.2 had appeared. Therefore, the
reasons made out are not correct. For aforesaid reasons, he has prayed
for dismissal of notice of motion.
4. Heard learned advocate for plaintiff. Learned advocate for
defendant is absent when called out for hearing of this notice of motion.
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Perused the file. Defendant No.2 is served with writ of summons on
27.12.2013. The fact that defendant No.2 appeared in various other
proceedings is admitted by plaintiff. Despite this fact, defendant No.2 is
not exempted from filing the written statement within prescribed time
as per Order - 8 Rule - 1 of CPC.
5. The reasons mentioned in the affidavit in support of notice
of motion are very casual. Delay is of more than 1500 days. However, if
defendant No.2 is denied opportunity to file its written statement, the
suit will not be decided on merits. It will also invite multiplicity of
proceedings which is not in the interest of both the parties. The
inconvenience caused to the plaintiff can be compensated by imposing
costs.
6. Plaintiff has relied upon the observations in
Salem
Advocate Bar Association V/s. Union of India (2005) 6 SCC 344 and
Atcom Technoliges Ltd. V/s. Y.A. Chunawala and Company (2018) 6
SCC 639.
7. I do not dispute about the observations in both the citations
which are salutary. However, Defendant has affirmed on oath the
reasons for which delay is caused in filing written statement. According
to him, defendant No.2 was attempting to get the documents and the
facts for filing the written statement. Defendant No.2 is huge
organization and therefore, it needed considerable time for documents
to be located and the facts to be collated. Therefore, defendant No.2
could not file its written statement in time.
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8. Defendant has made out reasons in their notice of motion
as to why it could not file written statement within time. As no doubt is
created in aforesaid reasons, it can be safely said that defendant has
made out sufficient cause to condone the delay. No inaction, negligence
or malafides are pointed out by plaintiff. Therefore, Defendant has
made out sufficient cause can be concluded. For discussion above, it
will be not proper to disbelieve the averments in affidavit in support of
notice of motion. It is not in dispute that defendant No.2 is
organization. Considering this fact the averments in the affidavit in
support of notice of motion cannot be overlooked or doubted.
Defendant No.2 being organization, it will be not proper to disbelieve
the averments in the affidavit in support of notice of motion. It will be
in interest of both the parties that defendant No.2 is given opportunity
to file written statement by condoning the delay. If the written
statement of defendant No.2 comes on record, it will help to decide the
suit on merits which in the interest of both the parties. Therefore, I
proceed to pass following order -
ORDER
1. Notice of Motion No.1808/2019 is hereby allowed subject to costs
of Rs.3,000 (Rs. Three Thousand Only), to be paid by defendant
No.2 to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 30.10.2015 passed against defendant No.2 shall
stand set aside so also the delay caused in filing written
statement shall stand condoned and written statement tendered
on record by defendant No.2 shall be taken on record.
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3. Notice of Motion No.1808/2019 is accordingly disposed of.
(SMT C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 04.02.2021 City Civil Court, Gr. Bombay.
Directly dictated on Com :04.02.2021.
Checked on :05.02.2021.
Signed on :05.02.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.02.2021, 05.22 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
04.02.2021
JUDGMENT/ORDER signed by P.O.
on
05.02.2021
JUDGMENT/ORDER uploaded on 05.02.2021
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