Interim Order 3

Order Details: Order below exhibit
Pdf Text: 1 OBE 23 in CSU022021
IN THE CITY CIVIL COURT AT MUMBAI.
ORDER BELOW EXHIBIT 23
IN
COMMERCIAL SUIT No.02 OF 2021
Tejmalji Veeraji Darbar …PLAINTIFF
VERSUS
Deep Singh bhik Singh Deora & Ors. …DEFENDANT
Shri. Rajendra Bindra , learned advocate for plaintiff.
Shri Vinod Naik, learned advocate for defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
O R D E R
(Delivered on 15/11/2022)
This is an application filed by advocate of plaintiff under
Section 151 of CPC for striking off defence of defendant Nos.1 and 3 on
the ground that defendant Nos.1 and 3 have filed written statement
after prescribed period of 30 days from the date of service of suit
summons.
2. Advocate of defendant Nos.1 and 3 has filed reply on
Exh.27 and contended that defendant Nos.1 and 3 served with suit
summons on 26.8.2021. Thereafter, on 24.9.2021 and 20.10.2021
defendant Nos.1 and 3 appeared in this matter and sought time to file
written statement. They were require to file written statement within 30
days i.e. on or before 26.9.2021. However, defendant No.1 filed written
statement on 9.11.2021 i.e. after 75 days from the date of service of suit
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summons and defendant No.3 has filed written statement on 3.12.2021
i.e. after 100 days from the date of service of suit summons.
3. Due to Covid19 outbreak, the family of defendant No.1
was at his native Dhamseen, District Jalore, Rajasthan. He could not
timely collect documentary evidence and pass on his advocate.
Defendant No.3 has lost his son in road accident in April 2021 and his
entire family was in trauma and depression. Thus, defendant No.3 had
to go to his native at Dhamseen, Rajasthan. Therefore, he was not in
position to give information to advocate.
4. Heard learned counsel of both the parties. As per
amendment to the CPC in its application to the commercial disputes;
under Order 8 Rule 1 of CPC defendant has to file written statement
within 30 days from the date of service of suit summons. Provided that
where the defendant fails to file written statement within the said
period of 30 days, he shall be allowed to file written statement on such
other day, as may be specified by the court, for reasons to be recorded
in writing and on payment of such costs as the court deems fit, but
which shall not be later than 120 days from the date of service of
summons and on expiry of 120 days from the date of service of
summons the defendant shall forfeit the right to file written statement
and the court shall not allow the written statement to be taken on
record.
5. In Case Law of Hon’ble Supreme Court in Misc. Civil
Application No.21/2022, 665/2021 in Suo Motu Writ Petition(C)
No.3/2020, dtd.10/1/2022. Hon’ble Supreme Court has extended the
limitation in cases where the limitation would have expired during the
period between 15/3/2020 to 28/2/2022.
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6. It is admitted fact that defendant Nos.1 and 3 served with
suit summons on 26.8.2021. They filed written statement on 9.11.2021
and 3.12.2021 respectively. The written statement of defendant Nos.1
and 3 is within 120 days from the date of service of suit summons.
Moreover, as per aforesaid order of Hon’ble Supreme Court the
limitation period from 15.3.2020 to 28.2.2022 excluded from limitation
period.
7. In the present case defendant Nos.1 and 3 served with
summons on 26.8.2021. Hence, the limitation starts from 1.3.2022 to
file written statement. Defendant No.1 has filed written statement on
9.11.2021 and defendant No.3 has filed WS on 3.12.2021 i.e. prior to
the 1.3.2022. Hence, there is no delay in filing written statement.
Therefore, the question of striking of defence of defendant does not
arise. Hence, I pass following order.
ORDER
Application Exh.23 stands rejected.
Date : 15/11/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 15/11/2022
Checked on : 15/11/2022
Signed on : 15/11/2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15/11/2022 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 15/11/2022
Order signed by P.O. on 15/11/2022
Order uploaded on 15/11/2022
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