Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2291/2019 ..1.. Suit No.1003 of 2018
CNR No.MHCC010063262019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.2291 OF 2019
IN
SUIT NO.1003 OF 2018
M/s. Ish Homes Private Limited .. Plaintiff
Versus
Velji Mulji Savala and others .. Defendants
Mr. Prashant Dhondsekar, CA for plaintiff
Ms. Snehal Marathe, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 09th August, 2019
ORAL ORDER
Notice of motion is taken out by defendants for condonation of
288 days delay caused in filing of written statement on record.
2. It is contention of defendants that defendant No.1 is 87 years of
age and has been suffering from severe arthritis of both knees with age
related general disability. He was bed ridden from May, 2018 to
February 2019. Since last 15 years he is under medical care and
treatment of doctors. It is further contended that defendants were
served with writ of summons on 6th August, 2018. Due to illhealth of
defendant No.1, inadvertently he lost the track of suit and could not
contact to their advocate to give instructions to file their written
statement. Therefore, written statement remained to be filed within
stipulated time period. It is further contended that defendants have
good case on merits. Delay caused in filing written statement is not
deliberate but bona fide. Accordingly, urged in above terms.
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3. Plaintiff has filed reply and objected to notice of motion. It is
contended that though defendant No.1 was bed ridden from May 2018
to February 2019 but no explanation has been given as to why he has
not filed written statement in the month of March, April and May, 2019.
No proper medical records have been annexed by defendant No.1 and
only just a single page of certificate has been annexed with notice of
motion. Defendant No.2 is also partner of defendant No.3 but no
explanation is given as to why defendant No.2 has not filed written
statement in time. This conduct of defendants clearly show that they
have delayed the matter intentionally. Accordingly, plaintiff prayed for
dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it, reply of
plaintiff and pleadings of parties. Heard respective counsel for
defendants and CA for plaintiff. They advanced their arguments in
accordance with respective contention. Learned advocate for defendants
placed reliance upon the authority in the case of N. Balkrishnan Vs.
Krishnamurthy, AIR 1998 Supreme Court 3222 in support of his
submission. In cited authority it is observed that, “It must be
remembered that in every case of delay there can be some lapse on the part
of the litigant concerned. That alone is not enough to turn down his plea
and to shut the door against him. If the explanation does not smack of
mala fides o or it is not putforth as part of dilatory strategy the Court
must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the party
deliberately to gain time then the Court should lean against acceptance of
the explanation. While condoning delays the court should not forget the
opposite party altogether. It must be borne in mind that he is a loser and
he too would have incurred quite a large litigation expense. It would be a
salutary guideline that when Courts condone the delay due to laches on
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NM No.2291/2019 ..3.. Suit No.1003 of 2018
the part of applicant the Court shall compensate the opposite party for his
loss”.
5. It is a settled law that Order VIII Rule 1 of CPC is not mandatory
and in specific circumstances the written statement can be accepted
with reasons. It is also held that in an adversarial system, no party
should be denied an opportunity in participation of the justice
dispensation system (Salem Bar Association V/s Union of India
(2003 AIR SCC 189) and Zolba V/s Keshav (2008 AIR SCC 2099).
6. Keeping in view above legal principles, I have considered
present notice of motion. Writ of summons was served upon the
defendants on 04.08.2018. They have not filed their written statement
within stipulated period. Defendant No.1 on solemn affirmation stated
that due to his illhealth, inadvertently he lost track of present matter
and hence could not contact their advocate for giving instructions to file
their written statement. He also filed copy of medical certificate in
support of his contention. Copy of medical certificate shows that
defendant No.1 was bed ridden from May, 2018 to February, 2019 for
age related general disability and osteo arthritis. Considering that,
defendant No.1 is aged about 87 years possibility cannot be ruled out
that he is suffering from age related general disability. Reason assigned
by him is sufficient in my view to condone delay. However, there
appears lapses on the part of both the defendants. But for that reason it
is not appropriate to turn down the plea of defendants and to deprive
them from contesting matter on merits. Therefore, in order to give
defendants an opportunity to participate in proceedings and so also in
the interest of justice and fair trial, I find it just to condone the delay
caused in filing written statement and to take the same on record.
However, considering the conduct of defendants it is necessary to
impose certain costs upon them. Hence, pass following order
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ORDER
1. Notice of Motion No.2291 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b) subject to payment of costs of
Rs.10,000/ (Rupees Ten Thousand only) to the plaintiff within period
of 10 days from the date of this order. Defendants are at liberty to
deposit costs payable to plaintiff in the Court.
2. Defendants have to file their written statement within seven
days from the date of payment of costs as per clause (1).
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 09.08.2019 Gr. Bombay
Typed on : 09.08.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.08.2019. 5.30 p.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
09.08.2019
JUDGMENT/ORDER signed by P.O.
on
13.08.2019
JUDGMENT/ORDER uploaded on 13.08.2019
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