Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2117 OF 2019
IN
S.C.SUIT NO.744 OF 2018
Indian Overseas Bank ....Plaintiff
V/s
M/s.Prisha Enterprises .... Defendant
APPEARANCE:
Advocate Sneha Nalge for plaintiff.
Advocate Yagnesh Vyas for defendant
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 10th December, 2019
ORDER
Perused Notice of Motion alongwith affidavit in reply.
2. It is submitted by defendant that the present suit is filed by
plaintiff against defendant and he had been served writ of summons on
8/6/2018. After serving of writ of summons he started looking out for
an advocate to engage and represent him in the above said suit.
However, he could not engage advocate to represent him in the Court.
It is further submitted that he was going through financial crisis since
May due to the loss of his business which prevented him for appointing
the advocate to represent him in the suit. It is further submitted that
his wife was unwell from 8/3/2019 to 12/3/2019 she was hospitalized
for lack of blood in the body and therefore, he could not meet his
advocate to seek necessary legal advise in the suit. It is further
submitted that he does not received exhibit/annexture alongwith plaint
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and therefore, he has made necessary correspondence to the advocate
for plaintiff but he failed to provide copies and therefore, he applied for
certified copies and delay has been caused 340 days but the said delay
is not intentional. Lastly it is submitted that the order dated 13/3/2019
be set aside and delay may be condoned and defendant may be
permitted to file written statement on record.
3. Plaintiff has filed written reply and denied entire contention in
the Notice of Motion in toto and contended that the defendant has
failed to tender written statement within stipulated time and therefore
the present Notice of Motion is not maintainable. It is further
contended by the plaintiff that the affidavit accompany with Notice of
Motion does not speak truth and its vague and not specific in disclosing
accurate reasons for not filing the written statement within the time
provided by the statute. It is further contended by the plaintiff that the
defendant has prayed to condone delay however, it was upon defendant
to establish every days delay and it has to be explained but defendant
has failed to explain the delay. It is further contended by the plaintiff
that the defendant has made general statement all supported by
documents and therefore, the present Notice of Motion is not
sustainable in the eyes of law. It is further contended by the plaintiff
that the statutory period is already expired long back therefore, Notice
of Motion may kindly be rejected with costs.
4. I have heard Ld.Counsel for defendant Yagnesh Vyas and also
perused the written argument filed by advocate for plaintiff vide Exh
10. It is submitted by the counsel for defendant that the defendant
served writ of summons on 8/6/2018 and the order was passed against
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him on 13/6/2019. He pointed out that the delay has been caused one
year and five days. It is argued by the counsel for defendant that
defendant has searching advocate for legal advise and to represent him
before the Court. However, he has going in financial crisis and
therefore, he could not search advocate for representing him before the
Court. Ld.Counsel for defendant drew my attention towards record and
submitted that the defendant had served writ of summons with copy of
plaint however, plaintiff failed to provide exhibits/annextures and
accordingly necessary correspondence was made to the advocate for
plaintiff, however, plaintiff failed to provide annextures/exhibits and
therefore, he need to apply for getting certified copies of annextures
/exhibits. It is further pointed out by the advocate for defendant that
the wife of defendant was unwell and she is in hospital. She needs
medical treatment and because of that the defendant failed to
concentrate on the present suit and order dated 13/3/2019 was passed
against him. It is further submitted by the counsel for defendant that
the reason shown by defendant in the Notice of Motion may be
considered liberally. Lastly, it is submitted that admittedly there is
delay to file written statement on record but the defendant explained
the reason for delay. The reason mentioned by the defendant in the
Notice of Motion may kindly taken into consideration and order dated
13/6/2019 kindly be set aside.
5. Ld.Counsel for plaintiff tendered written notes of argument vide
Exh10. It is submitted by the counsel for plaintiff that no sufficient
cause has been shown by the applicant in the Notice of Motion. It is
further submitted by the counsel for plaintiff as per the various decision
of the Hon'ble Supreme Court day to day delay shall be explained by the
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defendant. It is further submitted by the counsel for defendant
negligence of the proceeding cannot be accepted as a ground for delay
condonation. The applicant raised flimsy story for seeking condonation.
Lastly, it is pointed out by counsel for plaintiff that the summons is
served upon defendant on 8/6/2018 through bailiff. It is a proper
service, however, defendant failed to tender written statement within
stipulated time, therefore, Notice of Motion may kindly be dismissed
with costs.
6. After going through the records and submissions putforth by
counsel for plaintiff and defendants I drew my attention towards
record. Admittedly, the defendant has served writ of summons on
8/6/2018. As per record the defendant appeared through his
representative on 20/6/2018. Since 13/6/2019 defendant appear
before the Court in person/through representative however, failed to
tender written statement on record within stipulated time. As per
O.VIII R.1 of CPC it was upon defendant to tender written statement
within 30 days provided that if defendant failed to tender written
statement within 30 days time can be extended upto 90 days if
defendant shows extraordinary reason and explained the delay. In the
present Notice of Motion the defendant raised ground that his facing
financial crisis and therefore, he could not engage service of advocate.
However, the record shows that the representative of defendant attend
the matter on behalf of defendant regularly therefore, I do not find any
merit in the ground raised by the defendant in the Notice of Motion.
Further more, defendant has raised the ground that he does not receive
annextures/exhibits alongwith copy of plaint but he did not make
submission to the court regarding the copies of annextures/exhibits.
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Admittedly, he made some correspondence to the advocate for plaintiff
but failed to inform the court regarding copies of annextures/exhibits.
The defendant has raised further ground i.e. wife is unwell and
hospitalized and because of that he could not concentrate on the
litigation. For the ground of hospitalization of his wife the defendant
has not filed any certificate on record to show that his wife is
hospitalized. Moreover, the defendant has raised finger towards
procedural accept and raised ground that the Court is on vacation and
therefore, he could not tender written statement within stipulated time.
Admittedly, it is duty of defendant to tender written statement within
30 days after execution of writ of summons. Prima facie looking into
the facts and circumstances it is admitted by the defendant that the
Notice of Motion he could not tender written statement within
stipulated time. After gone through the relevant record and the ground
raised by the defendant I found that the grounds are not satisfactory
and extraordinary to condone delay . Hon'ble Supreme Court in
Atcon Techonologies Limited v/s Y.A.Chunawala and Co. & Ors.
(Civil Appeal No.(S).42664267 of 2018) (date of Judgment May, 7
2018) held that onus upon the defendant is of higher degree to plead
and satisfactorily demonstrate valid reason for not filing written
statement within 30 days. In the present Notice of Motion defendant
failed to discharge onus of higher degree to plead and satisfactorily
demonstrate valid reason for not filing the written statement within 30
days. Under such circumstances O.VIII R.1 of CPC does not permit this
court to exercise power to condone delay without any special/extra
ordinary reason.
7. Ld.Counsel for defendant has also relied upon the ruling reported
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in AIR 1975 Pat 24 Patna High Court, (2009) 2 AIR Jhar R 59
Jharkhand High Court and (2006) 65 ALR 382 (ALL) Allahabad
High Court. However, the ratio laid down by the Hon'ble Supreme
Court in the abovesaid ruling cited (supra) is applicable to the present
matter therefore, relying on the ruling of Hon'ble Supreme Court. I
proceed to pass following order.
ORDER
Notice of Motion No.2117 of 2019 is dismissed with costs.
Date:10/12/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 10/12/2019
Typed on :10/12/2019
H.H.J.Signed on :10/12/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.12.2019 at 5.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
10.12.2019
JUDGMENT/ORDER signed by P.O. on 10.12.2019
JUDGMENT/ORDER uploaded on 10.12.2019
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