Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.2183-19
in Sum Suit No.6590-19
MHCC010060502019
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
NOTICE OF MOTION NO. 2183 OF 2019
IN
SUIT NO. 6590 OF 2003
(HIGH COURT SUIT NO. 1083 OF 2003)
Central Bank of India
...Plaintiff
Versus
Schokhi Industrials Pvt. Ltd. & Anr.
...Defendants
Appearance :
Ld. advocate Ms. Shreelakhmi Nair h/f. Adv. V. K. Nair for plaintiff.
Ld. advocate Ms. Pranjali Bhandari for defendants.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 17-01-2023.
ORDER
(Dictated and pronounced in open Court)
By way of present Notice of Motion defendants seek to condone
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delay in filling Written Statement as well as to set aside ‘No W.S.’ order
passed by this Court on 19-10-2012 and for other ancillary reliefs.
2. Notice of Motion is strongly objected by the plaintiff by way of
filing affidavit-in-reply.
3. Heard both the sides.
4. Learned advocate Ms. Bhandari for defendants submits that the
suit was originally filed before the Hon’ble High Court. As the plaintiff failed
to take out Summons for Judgment, the Hon’ble High Court by order dated
23-09-2009 permitted the defendants to file Written Statement on or before
02-12-2009. She further submits that thereafter matter was not listed on
board and therefore due to oversight, defendants failed to file Written
Statement.
5. She further submits that subsequently, in the year 2012, owing
to enhancement of pecuniary jurisdiction of this Court, the suit was
transferred to this Court. Defendants as well as plaintiff had not appeared
before this Court. Therefore, learned predecessor of this Court dismissed the
suit in default by order dated 15-04-2013. She further submits that plaintiff
therefore took out Notice of Motion No.2116 of 2015 for restoration. Said
Notice of Motion was heard and allowed on 04-07-2018 and thereby suit was
restored.
6. She further submits that due to transfer of the suit coupled with
the dismissal, defendants could not file Written Statement. As soon as
defendants came to know about the restoration of suit, the present Notice of
Motion is taken out for aforesaid prayers. She further submits that if the
Notice of Motion is not allowed, defendants would suffer great prejudice and
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would lose chance to contest the suit.
7. Ld. advocate for the defendants point out the order dated 04-
07-2018 in Notice of Motion No. 2116 of 2015 and submits that even the
plaintiff was not vigilant to prosecute the suit. The delay was condoned by
this Court on sympathetic ground and therefore defendants needs to be
treated alike and given an opportunity to file Written Statement.
8. Learned advocate Ms. Nair appearing for plaintiff vehemently
submits that there are no cogent or sufficient reason supplied by the
defendants to allow the present Notice of Motion. The matter is full of lame
excuses. So called oversight cannot take place of sufficient ground to
condone such huge delay. She submits that in fact defendants were aware of
the present suit as the cross suit is still pending.
9. Learned advocate for the plaintiff relies on the Judgment of the
Hon’ble Apex Court in the case of D. Gopinathan Pillai Vs. State of Kerala &
Anr. ,2007 (4) ALL MR 313 and submits that the Hon’ble alike in that case, in
matter in hand High Court Court had specifically directed defendants to file
Written Statement on or before 02-12-2009. The non listing of the matter on
board and subsequent transfer or dismissal in default cannot be a good
ground for allowing the present Notice of Motion. She further submits that in
matter in hand sympathetic view cannot be taken to condone such huge and
unexplained delay. She ultimately prays to dismiss the Notice of Motion.
10. The parties are not at dispute on the point that the Hon’ble
High Court by order dated 23-09-2009 had directed defendant to file Written
Statement on or before 02-12-2009. It is further not in dispute that thereafter
Written Statement was not filed and suit was transferred to this Court in the
year 2012. Initially, ‘no w.s. order’ was passed on 19-10-2012 and
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subsequently the suit was dismissed in default 15-04-2013. It is further not in
dispute that by virtue of order dated 04-07-2018 in Notice of Motion No.
2116 of 2015, suit was restored.
11. The order dated 04-07-2018 reveals that there was delay of
720 days in filing Notice of Motion for restoration. However, said delay was
condoned by this Court in the interest of justice. The learned predecessor of
this Court in the said order has observed that both parties were equally at
fault.
12. Merit of the Defendants Motion seems to lie in the past defaults
of the plaintiff. It is contended that due to non prosecution of the suit, the
Hon’ble High Court had granted permission to the defendant to file Written
Statement. So also delay in restoration is sought be taken as one of the
ground to condone the delay in the present Notice of Motion.
13. It needs to be noted that the delay on the part of the plaintiff to
prosecute the suit cannot though cannot be a sufficient reason for
condonation of delay, however same needs to be taken in to consideration. At
the cost of repetition it needs to be noted that defendants were equally casual
in respect of non filing the W.S. as that of plaintiff in prosecution of the suit. It
is obvious that if the present Notice of Motion is rejected, defendants would
lose right to participate and contest the suit. Considering the fact that the
plaintiff was afforded one opportunity to prosecute the suit, in my considered
view defendant also deserves equal treatment.
14. The Hon’ble Apex Court in the case of D. Gopinathan Pillai
(supra) was dealing with the situation of condonation of the delay of 3320
days in setting aside the award passed by the arbitrator. The Hon’ble Apex
Court has observed that the mandatory time line of 30 days in filing appeal
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was not adhere to. So also the delay was not properly explained and as such
the order of condonation of delay passed by the Hon’ble High Court was set
aside.
15. In matter in hand the facts are some what different. Both the
parties are admittedly equally at fault. As the cross suit is also pending
between the parties, refusal of opportunity to file W.S. would cause hardship
to the defendants. So as to decide the litigation on merit, defendants shall get
an opportunity to contest the same by filing Written Statement. However, as
the delay is quite huge, I am of the view that same can be condoned by
imposing appropriate cost. By excluding period of dismissal of default, still
there is a delay of almost three years before passing ‘no ws order’ and almost
one year after restoration. However, as the suit is subsequently restored, I
think Notice of Motion can be allowed subject to imposing cost of
Rs.25,000/-. Hence, I pass the following order.
ORDER
1. Notice of Motion No. 2183/2019 is hereby allowed, subject to cost of
Rs. 25,000/- (Rupees Twenty Five Thousand) in terms of prayer clause
(a) and (b), which reads as under-
“
(a) That delay, if any, in taking out this application may kindly
be condoned.
(b) That this Hon’ble Court be pleased to set aside the
impugned Order dated 19th October 2012 passed by this
Hon’ble Court to allowing the suit to proceed without Written
Statement and directing the plaintiff to file evidence without
Written Statement. ”
2. Out of the cost, Rs. 10,000/- ( Rupees Ten Thousand) be paid to the
plaintiff and Rs. 15,000/- (Rupees Fifteen Thousand) be deposited
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with DLSA, Mumbai
3. Cost to be deposited within two weeks from the date of this order.
4. On compliance of the order, Written Statement be taken on record
which is already been tendered on record.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai
Date-17-01-2023 Court Room No.61
Dictated on : 17-01-2023
Transcribed on : 18-01-2023
Signed on : 20-01-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17-01-2023 at 5.55p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
17-01-2023
JUDGMENT/ORDER signed by P. O. on 20-01-2023
JUDGMENT/ORDER uploaded on 20-01-2023
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