Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2422 OF 2019
IN
S.C.SUIT NO.2656 OF 2016
Novie Agro Investment Private Limited .... Plaintiff
V/s
1. Orbit Construction
2. Orbit Corporation
3. White Stone Properties Private Limited
4. Pujit Ravikiran Aggarwal
5. Ravikiran Surajbhan Aggarwal
6. Deepak Singhai
7. Sahil Jain .....Defendants
APPEARANCE:
Advocate Pooja Pangale for plaintiff.
Advocate Veena Khatri for defendant nos.1,3,4 and 6.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 02nd November, 2019
ORDER
Perused Notice of Motion @ Affidavit.
2. Perused reply and affidavit filed by plaintiff and Affidavit
tendered by defendant no.6 in support of Notice of Motion.
3. It is submitted by the defendant no.6 that the present suit is filed
by plaintiff against defendants for recovery of amount. It is further
submitted that they are appeared however, failed to tender written
statement within stipulated time and therefore suit is proceeded
without written statement on 06.06.2019. It is further submitted that
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the defendant wanted to contest suit by filling written statement unless
the reliefs are granted if not grave and irreparable loss, damage, and
injury will be caused to defendant nos.1,3 and 6 which cannot be
compensated in terms of money. Lastly, it is prayed that no written
statement order dated 06.06.2019 be set aside and if any delay may be
condoned for filling written statement and defendant nos.1,3 and 6 be
permitted to file written statement.
4. The plaintiff opposed the application by filling written reply. It is
contended by plaintiff that the defendant has nowhere in the pleading
stated that as how many days delay is sought to be condoned and in
absence of days being mentioned in the application for condonation of
delay cannot be allowed. It is further contended by the plaintiff that the
summons were served to the defendant in the year 2016 however,
defendant nos.1,3 and 6 failed to tender written statement within
stipulated time. It is further contended by the plaintiff the defendant
nos.1,3 and 6 explained the reason in the Notice of Motion that the
paper was misplaced however, the reason is causal one and on causal
reason defendant do not permit to condone delay. It is further
contended by the plaintiff that the advocate for defendant nos.1,3, 4
and 6 were appeared on 29.06.2017 but did not file vakalatnama they
have knowledge about the suit and stages however, they have taken
causally and failed to tender written statement within a stipulated time.
It is further contended by the plaintiff that as per O.VIII R.1 of C.P.C. it
was obligatory on the part of defendant nos.1,3,4 and 6 to file their
written statement within 30 days provided that if any special reasons
they failed to tender written statement within 30 days then days can be
extended for the period of 90 days. But in the present application the
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defendant are failed to explain special and proper reason for the
satisfaction of the court for the delay and in absence of special reason
defendants are not entitled to seek relief under O.VIII R.1 of C.P.C.
Lastly, plaintiff prayed that Notice of Motion may kindly be rejected.
5. Defendant no.6 filed Affidavit in Support of Notice of Motion and
stated entire facts as it is mentioned in the Notice of Motion.
6. When Notice of Motion is on the stage of hearing advocate Mrs.
Veena Khatri for defendant nos.1,3,4 and 6 is present before the court.
She tendered affidavit of defendant no.6 in support of Notice of Motion
however, remained absent on 19.10.2019. She is holding advocate
Mangal Kadam. She was present and tendered rejoinder on behalf of
defendant nos.1,3,4 and 6 however, shown her inability to argue the
matter on behalf of defendant nos.1,3,4 and 6. Hence, the Notice of
Motion is decided on his own merit without being heard to the advocate
for defendant nos.1,3,4 and 6.
7. Per contra, Ld. counsel for plaintiff Pooja Pangale submitted that
the defendant nos.1,3,4 and 6 are failed to explain how many days
delay has been caused for filling written statement on record. She
further submitted that the defendant nos.1,3,4, and 6 tendered Notice
of Motion after one year. She further argued that the defendant
nos.1,3,4 and 6 took stand that paper and documents are misplaced but
the reasons shown by the defendant nos.1,3,4 and 6 is casual in nature
except these no special reasons were cited by the defendant nos.1,3,4
and 6 regarding delay. She further pointed out that as per O.VIII R.1 of
C.P.C. it was obligatory on the part of defendant to file written
statement within 30 days provided that time can be extended for the
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period of 90 days if defendant shown sufficient cause. However, in the
present Notice of Motion the defendant Nos.1,3,4 and 6 failed to show
sufficient cause and therefore, Notice of Motion is liable to be rejected.
8. After hearing Ld. Counsel I have perused the entire record the
present suit is filed by plaintiff against defendant for recovery amount
of Rs.42,14,490/ in the year 2016. After filling suit writ of summons
were issued for appearance of defendant. In view of Exh.No.2 the
plaintiff has filed service affidavit. As per service affidavit the
defendant Nos.1,3,4 and 6 duly served in the year 2016. Record shows
that after serving writ of summons they appeared however, they failed
to file written statement till filling this Notice of Motion. As per O.VIII
R.1 of CPC has rightly pointed out by Ld counsel for plaintiff that the
defendant shall be tendered their written statement within 30 days
provided that if the circumstances beyond control of defendant time can
be extended till 90 days and thereafter if defendant wanted to tender
their written statement then they have to shown special reason.
Admittedly, the defendant nos.1,3,4 and 6 failed to tender their written
statement as per the mandate of O.VIII R.1 of CPC. They also failed to
mention in their Notice of Motion how many days delay is caused.
Moreover, not a single reason cited or explain by the defendant
nos.1,3,4 and 6 regarding the delay and the reason mentioned by them
in their Notice of Motion is appears to be causal in nature and it cannot
be taken into consideration under O.VIII R.1 of C.P.C. In absence of
special and unexplained reason for delay under O.VIII R.1 of C.P.C.
does not give me power to condone delay. In the abovesaid discussion I
come to conclusion that the Notice of Motion does not have any merit
and hence I proceed to pass following order.
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ORDER
Notice of motion No. 2422 of 2019 is dismissed with costs.
Date:02/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 02/11/2019
Typed on :02/11/2019
H.H.J.Signed on :02/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
02.11.2019 at 11.30 a.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
02.11.2019
JUDGMENT/ORDER signed by P.O. on 02.11.2019
JUDGMENT/ORDER uploaded on 02.11.2019
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