Order 1

Order Details: Notice of Motion
Pdf Text: NM 1865/2018 SUIT 1664/2017 1
1
CNR NO.MHCC010060512018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1865 OF 2018
S.C.SUIT NO.1664 OF 2017
Praveen Kumar S/o.Surendra Singh .. .. Plaintiff
Versus
National Collateral Management Services Ltd. ...Defendants
Shri.Sushant Yadav advocate for Defendants.
Smt.Arti Kulkarni advocate for Plaintiff.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated : 3rd November 2018
ORDER
1. Defendant taken out this motion for condonation of delay of 181
days in filing written statement.
2. Writ of summons was served on defendant on 17/09/2017. After
receipt of writ of summons defendant approached to the advocate. The
advocate took some time considering the issues involved in the case and
the remedies available to the defendant and thereupon after taking
instructions on the same prepared written statement. After going
through the record of the plaintiff maintained by the defendant,
defendant officer realised that the plaintiff has not returned the benefit
-- 1 of 4 --
NM 1865/2018 SUIT 1664/2017 2
which were withdrawn vide termination notice dated 03/10/2016,
thereafter, managing committee came to the conclusion that plaintiff
should have returned the same, soon after this benefits were withdrawn
and he is not entitled to hold back the same. Thereafter, the said facts
were informed to their advocates to take appropriate action. Certain
documents on which defendants are relying were not traceable earlier,
therefore, defendant could not prepare the written statement, hence,
delay has been caused. There is sufficient cause for condonation of
delay, hence,defendant prays that delay be condoned and motion be
made absolute.
3. Plaintiff filed the reply. Writ of summons was served on
defendant in 17/09/2017. Delay is more than 100 days therefore, it
cannot be condoned as a matter of right or privilege to the defendants.
There is no satisfactory explanation for condonation of delay, hence,
motion be dismissed with costs.
4. Heard learned advocate Shri.Sushant Yadav for defendants and
Smt.Arti Kulkarni for plaintiff.
5. Before entering into actual merit, in case of Srirang
Dhairyasheel Shirole & others Vs. Deccan Education Society
(2013(1) Mh.L.J.233), it is held as “courts are required to adopt liberal
approach while acceptance of ‘sufficient cause’ and normally
explanation should be accepted as a rule and rejection thereof should
be in exceptional case”. By keeping well in mind this basic principle, I
will turn towards the factual aspect
6. Writ of summons served on defendant on 17/09/2017. It is not
-- 2 of 4 --
NM 1865/2018 SUIT 1664/2017 3
the case that defendant avoided to appear before the court with
intention to protract the matter. The suit is for recovery of
Rs.2,92,175/ with interest @ 18% p.a. Considering the nature of the
suit, opportunity must be given to the defendants to put up their case
before the court.
7. Order 8 Rule 1 of Civil Procedure Code is procedural and
directory in nature. Basic object of incorporation of order 8 Rule 1 is to
curb mischief laid by unscrupulous litigants who caused delay in
disposal of cases. Departure from time schedule is permissible in case
when it is required to prevent injustice to the other side.
8. In view of the above discussion, if the delay is condoned by
imposing a cost of Rs.2000/ be paid to the plaintiff and allowed the
defendant to put their written statement on record then that will be
justifiable, hence, I pass the following order.
ORDER
1. Notice of Motion No.1865/2018 is made absolute subject to
cost of Rs.2000/(Rs.Two thousand only) be paid to the
plaintiff on or before next date.
2. After compliance of the order written statement of the
defendant be taken on record.
Date : 03/11/2018 (Pushpa N. Rao)
Ad hoc Judge
City Civil & Sessions Court
Greater Mumbai
Direct typed on computer : 03/11/2018
Signed by HHJ on : 03/11/2018
-- 3 of 4 --
NM 1865/2018 SUIT 1664/2017 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03/11/2018 at (5.50P.M.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of JUDGMENT/ORDER 03/11/2018
JUDGMENT/ORDER signed by P.O.on 03/11/2018
JUDGMENT/ ORDER uploaded on 03/11/2018
.
-- 4 of 4 --