Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1772/2018 in Suit No.4521/2011
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1772/2018
CNR No. : MHCC010057892018
IN
SHORT CAUSE SUIT NO. 4521/2011
Dhanlaxmi CHS Ltd. ...Plaintiff
V/s.
Deju K. Poojari & Ors. ...Defendants
Adv. Thakkar for plaintiff.
Adv. Andrews for defendants.
CORAM : HHJ Shri. G. R. Agrawal
C.R. No.3
DATED : 20.04.2019
ORDER
(Dictated in open Court)
By this notice of motion, the defendants no.1 & 2 are praying to
recall the order dated 12.6.2017 and for permission to file written
statement after condoning the delay. The plaintiff has filed reply to the
notice of motion and defendants no.1 & 2 have filed rejoinder.
2. Heard Ld. Counsel for the parties and perused record.
3. It is urged on behalf of the defendants no.1 & 2 that due to
pendency of notice of motion, they were given to understand by their
Advocate that written statement would be filed only after notice of
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motions are decided, since they had taken objection to the jurisdiction
of this Court. Even after the said objection was decided, they were not
advised by their lawyer to file written statement.
4. The Ld. Counsel for plaintiff has urged that defendants no.1 & 2
have failed to make out any case for condoning inordinate delay of
about 6 years in filing written statement. He submitted the length of
delay is not relevant but explanation for delay is essential. He urged
that no explanation is given in the affidavit and therefore the notice of
motion may be dismissed.
5. A perusal of the record shows that this suit was originally filed
before Hon’ble High Court and was transferred to this Court in the year
2012. On 22.7.2013, the Advocate for defendant no.4 filed notice of
motion no.1574/2012 praying to frame preliminary issue on the point
of jurisdiction. On 11.8.2014 preliminary issue was framed. Thereafter,
the matter was pending for hearing on preliminary issue which was
finally decided on 15.3.2016. It was held that this Court has jurisdiction
to try and decide the suit and notice of motion no.1574/2012 was
disposed of. On 12.6.2017, order was passed to proceed against
defendant no.4 without written statement. Thereafter, the plaintiff filed
affidavit evidence on 18.1.2018 and notice of motion no.3094/2011
was tagged with suit by order dated 22.3.2018. On 3.4.2018 and
25.4.2018, defendants no. 1, 2 and 4 filed notice of motion
no.1771/2018 and 1772/2018.
6. In view of the aforesaid position of the matter in the roznama, I
find that the period from 2012 to 2016 was consumed in deciding the
preliminary issue and notice of motion no.3094/2011. Therefore, the
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statement in the affidavit of defendants no.1 & 2 that during the
pendency of notice of motion they were given to understand that the
written statement can be filed only after notice of motions are decided,
cannot be disbelieved. It appears that defendants no.1 & 2 and their
Advocate realized about their mistake after the order dated 12.6.2017
and filing of evidence by the plaintiff.
7. Ld. Counsel for the plaintiff has placed reliance on the case of Dr.
Milind V/s. Prashant Mane 2019 (1) 645. In that case, the Hon’ble
Bombay High Court has set aside the order of Trial Court whereby the
application to file written statement was allowed by imposing cost of
Rs.8,000/. However, one fact of said case is important and i.e. in that
case the evidence of plaintiff and his witnesses was over. In the instant
case, the plaintiff has filed evidence but the matter is at the stage of
filing say on documents. The fact situation of the said ruling is different
from the present case.
8. In the other ruling cited by the Ld. Counsel for plaintiff i.e.
Atcoma Technologies V/s. Y.A. Chunawala, the delay of filing written
statement was of 15 years and 54 days, as mentioned in paragraph no.2
of the Judgment. The facts of the said case are also different from
present case.
9. The subject matter of the suit is a flat and valuable rights of both
parties are involved. The defendants no.1 & 2 may suffer serious
prejudice if they are not given one opportunity to contest the suit on
merits. In the facts and circumstances and considering the entire
record, I find that the defendants no.1 & 2 have made out sufficient
cause for condoning delay and granting permission to file written
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statement. However, defendants no.1 & 2 are liable to compensate the
plaintiff by paying cost. Hence, I pass following order –
ORDER
1. Notice of motion no. 1772/2018 is allowed subject to
payment of cost of Rs. 20,000/ to plaintiff within two
weeks from today, failing which, the notice of motion
shall stand dismissed.
2. If cost is paid, the written statement of defendants no.1 & 2
be taken on record.
(G.R. Agrawal)
Judge
City Civil Court,
Gr. Bombay.
Date : 20.4.2019
Dictated on : 20.4.2019
Typed on : 24.4.2019
Signed on : 24.4.2019
CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
24.4.2019 at 5.50 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
20.4.2019
JUDGMENT/ORDER signed by
P.O. on
24.4.2019
JUDGMENT/ORDER uploaded
on
24.4.2019
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