Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1670/2018 ..1.. Suit No.1263/2015
CNR No. MHCC0155452018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1670 OF 2018
IN
SUIT NO.1263 OF 2015
Mr. Johin Simon Nadar .. Plaintiff
Versus
Aviva Life Insurance Co. India Ltd and Another .. Defendants
Mr. G. S. Bhat, advocate for plaintiff
Mr. Sayyed Abbas Rizvi, advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 14th August, 2019
ORAL ORDER
Notice of motion is taken out by defendant no.1 for
condoning delay of 2 years 323 days (approximately) caused in
filing written statement and to take it on record.
2. It is the contention of defendant no.1 that it has received
the summons on 25.05.2015 at the branch of Lower Parel,
Mumbai. Accordingly, matter was referred to its Head Office at
Gurgaon on 28.05.2015. Documents relating to said suit were
forwarded to Delhi Legal Counsels at Delhi by 20.06.2015.
Thereafter, legal department of defendant No.1 drafted written
statement on 25.06.2015 and sent to defendant No.1 for
execution of written statement and affidavit who in turn after
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getting the documents sent back to Legal Counsel at Delhi and
after receipt of executed documents, Delhi Legal Counsels have
sent the same to their Local Counsel at Mumbai on 01.07.2015
which he received on 05.07.2015. Local counsel was all set to file
written statement and annexure on behalf of defendant No.1 on
fixed date of hearing on 01.09.2015. However, it was found that
file pertaining to entire set of documents in present suit was
misplaced by office staff of counsel and thereby local counsel was
incapable of filing written statement along with annexures on
stipulated date.
3. It is further contended that loss of documents was not
intentional but due to ignorance on the part of office of local
counsel and hence, beyond the control of local counsel of
defendant No.1. Legal Counsels at Delhi had rearranged entire
set of documents along with annexures, in which more time was
consumed and then Legal Counsels at Delhi posted the same to
local counsel of defendant no.1 at Mumbai; but counsel at
Mumbai advised the officer of defendant No.1 to wait till receipt
of summons at the Corporate office at Gurgaon and assured that
same would be filed after receipt of fresh summons.
4. It is further contended that such loss of time in filing of
written statement has not been intentional but has occurred all of
sudden and without any prior knowledge. On 19.04.2017 written
statement was ready and affirmed to be filed before this Court
but on presentation it was informed that there is delay in filing
written statement. Therefore, they took inspection of the suit
proceedings and it was found that plaintiff was asked to serve
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fresh summon on 29.07.2016 by this Court but the same has not
been served till date. Thus, so called delay in filing of written
statement has not occurred due to any fault of defendant No.1
but also due to nonserving of summons. Defendant no.1 has
genuine good case against the plaintiff and therefore it is
required to take written statement on record by condoning delay.
Accordingly, defendant no.1 urged in above terms.
5. Plaintiff failed to file his reply to the notice of motion.
6. Perused notice of motion, affidavit in support of it and
plaint. Heard respective counsel for parties. Learned advocate for
defendant No.1 argued in accordance with contention made in
affidavit in support of notice of motion. Learned advocate for
plaintiff made oral submissions opposing notice of motion.
7. From the contention of the defendant No.1, it is clear that
writ of summons has been served upon defendant No.1 on
25.05.2015 at their branch office at Lower Parel, Mumbai. It is
also apparent from their reply that their written statement along
with documents has been received by the Counsel at Mumbai on
05.07.2015. It is also their contention that on 01.09.2015 their
counsel did not file written statement and documents annexed to
it as same were misplaced by his office staff. Their contention
also shows that written statement was again got prepared
through counsel for defendant No.1 at Delhi but counsel at
Mumbai advised the officer of defendant No.1 to wait till receipt
of summons at the Corporate office at Gurgaon and assured that
same would be filed after receipt of fresh summons. Their
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contention further shows that fresh summons issued by the
plaintiff had not been received by defendant No.1. They have also
contended that written statement was affirmed on 19.04.2017. In
this background they contended that delay is not deliberate and
made prayer in above terms.
8. When it is admitted by defendant No.1 that writ of
summons has been served upon them on 25.05.2015, then
question of again service of writ of summons upon them does not
arise. More so, defendant No.1 appeared through their advocate
on 01.09.2015 in this proceeding in the Court. That being so,
question of issuance of fresh writ of summons does not arise. No
doubt, in roznama dated 29.07.2016 it is recorded that plaintiff is
directed to serve the writ of summons upon defendant. But when
writ of summons has already been served upon defendant No.1
question of again serving of writ of summons upon them does not
arise and further subsequent roznamas do not reflect that matter
was adjourned for awaiting service of writ of summons upon
defendant No.1. More so defendant no.1 ought to have shown
their bonafide by pointing out that it is inadvertently recorded in
roznama dated 29.07.2016 about direction to plaintiff to serve
writ of summons upon defendant as same has been already
served upon them and when written statement was again
received from their counsel at Delhi, they ought to have taken out
appropriate proceeding to take written statement on record. On
the contrary they want to use said roznama to their defence. It
indicates that defendant No.1 deliberately did not file their
written statement to cause delay in the matter though as per their
own contention had received written statement from their
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counsel at Delhi. Therefore, reason assigned by defendant No.1 is
not satisfactory and sufficient to condone inordinate delay caused
in filing of written statement.
9. It is useful here to mention authority in the case of Atcom
Technologies Ltd. Vs. Y.A. Chunawala and Co.,(2018) 6 SCC
639, wherein Hon'ble Supreme Court has reiterated legal
principle laid down in the case of Salem Advocate Bar Assn.
that, “maximum time period of 90 days for the purposes of filing
of the written statement can be extended in exceptional cases”. It
was held that “in such a situation, onus upon the defendant is of
a higher degree to plead and satisfactorily demonstrate a valid
reason for not filing the written statement within thirty days”.
10. In view of aforesaid judgments of the Hon'ble Supreme
Court, it is clear that in appropriate cases further time may be
granted by the court beyond maximum permissible time period of
90 days for the purposes of filing of written statement by
defendant in a civil suit. However, this can be done only in
exceptional situations and the burden to explain the reasons for
delay in a satisfactory manner lies on the defendant who seeks
extension of time for filing the written statement.
11. In present case as pointed above, the defendant No.1 has
not brought any exceptional case and assigned valid reason for
condoning delay caused in filing of written statement. Therefore,
notice of motion deserves to be dismissed. Hence, pass following
order:
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ORDER
Notice of Motion No.1670 of 2018
stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 14.08.2019 Gr. Bombay
Typed on : 14.08.2019
HHJ signed on :16.08.2019.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.08.2019, 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
14.08.2019
JUDGMENT/ORDER signed by P.O.
on
16.08.2019
JUDGMENT/ORDER uploaded on 18.08.2018
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