Order 1

Order Details: Notice of Motion
Pdf Text: NM 1966/2018 SUIT 102162/2016 1
CNR NO.MHCC010064662018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1966 OF 2018
IN
SUIT NO.102162 OF 2016
A.K.Travels & Tours Pvt.Ltd. ...Applicant
In the matter between
Axis Bank Ltd. .. .. Plaintiff
Versus
A.K.Travels & Tours Pvt.Ltd. ...Defendants
Smt.Benita Kapadia advocate for the Plaintiff.
Shri.Nagvekar advocate for the Defendants.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated : 23rd October 2018
ORDER
1. Defendant taken out this notice of motion for condonation of
delay of 557 days in filing the written statement and defendants be
allowed to place their written statement on record.
2. The writ of summons was served on defendants on 28/09/2016
thereafter, matter was listed on 05/10/2016 and 30/11/2016 but as the
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court was vacant, therefore, matter could not be taken up. On
01/02/2017 defendant appeared before court through advocate and
taken out the notice of motion No.645/2017 under order VII Rule 11 of
CPC for rejection of plaint. After hearing of the motion, motion was
dismissed on 26/04/2018. Therefore, now defendant is entitled to file
its written statement on record upon their motion for rejection of plaint.
On 26/04/2018 defendant attempted to tender their written statement
on record but defendants were directed to file the same along with
application for condonation of delay, hence, taken out this motion.
Delay caused in written statement if any, was not intentional or
malafide but for the reasons stated above, hence, motion be made
absolute in terms of prayer clause.
3. Plaintiff filed their reply. It is denied by the plaintiff that the
delay in filing written statement is not intentional or malafide. It is also
denied by the plaintiff that plaintiff has acted in good faith and
demonstrated its bonafide , therefore, they are entitled for condonation
of delay in filing written statement. The reasons assigned for
condonation of delay are not of sufficient cause, hence, motion be
dismissed with cost.
4. Heard Ld.advocate Smt.Benita Kapadia for the Plaintiff and
Shri.Nagvekar advocate for the Defendants.
5. Defendant placed reliance on :
R.K.Roja Vs. U.S.Rayudu And Another (2016) 14 Supreme
Court Cases 275.
In the above citation, defendants had taken out application for
rejection of election petition and the same has been posted along with
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the main petition and defendant was denied an opportunity to file
written statement, but in the instant matter, notice of motion
No.645/2017 taken out by defendant for rejection of plaint was
dismissed on 26/04/2018. Till the date of passing order on motion of
the defendant, defendant not shown their willingness to file their
written statement on record. As such, the facts in the case at hand are
not identical with the facts mentioned in the citation, therefore, with
due respect the ratio laid down in the above citation is not applicable in
the case at hand.
6. Order VIII Rule 1 of Code of Civil Procedure fixed the time limit
for filing written statement. The purpose of providing a time schedule
for filing written statement under Order VIII Rule 1 is to expedite and
not scuttle the hearing. The provisions spells a disability on the
defendant. It does not impose on embargo on power of court to extend
the time. The provision being in the domain of procedural law it held
directory and not mandatory. Therefore, it is open for the court to
permit the defendant to file their written statement beyond the
statutory period if exceptional circumstances are made out.
7. Writ of summons was served on defendant on 28/09/2016
therefore, it was expected that defendant should file their written
statement within the stipulated period, but defendant without filing
their written statement they chosen to taken out motion for rejection of
plaint on 01/02/2017. As the motion was taken out by defendant and
that was dismissed on merit, therefore, suit get protracted but now
defendants are ready to file their written statement on record..
Considering this aspect, I am of the view that if the delay of 557 days is
condoned by imposing cost of Rs. 3000/ be paid by defendants to the
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plaintiff on or before the next date then that will be justifiable for the
interest of both the parties, hence, I pass the following order.
ORDER
1. Notice of Motion No. 1966/2018 is allowed subject to cost of
Rs.3000/ (Rs.Three Thousand only)be paid to the plaintiff on or
before the next date.
2. After compliance written statement of the defendant be taken on
record.
Date : 23/10/2018 (Pushpa N. Rao)
Ad hoc Judge
City Civil & Sessions Court
Greater Mumbai
Direct typed on computer: 22/10/2018
Signed by HHJ on : 23/10/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/10/2018 at ( 3.30p.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 23/10/2018
JUDGMENT/ORDER signed by P.O.on 23/10/2018
JUDGMENT/ ORDER uploaded on 25/10/2018
.
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