Date: 02-08-2019
Business: Adv. Mishra for Plaintiff present.
Adv. Bandiwadekar for defendant nos.1 and 2 present.
Adv for defendants submitted that inadvertently original NM has been sent to the Plaintiff and sought time to file original NM on record.
Time is granted to file reply to NM.
Adj for reply to 07.09.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 07-09-2019
Date: 07-09-2019
Business: Adjd for Reply to 17/10/2019.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 17-10-2019
Date: 17-10-2019
Business: Adv. V.N.Mishra for plaintiff present.
He filed ajdjornment application Granted
Adjd to 30.11.2019 for NM reply and rejoinder.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-11-2019
Date: 30-11-2019
Business: None present for plaintiff.
Adv. Bandiwadekar for defendant no 1 and 2 present.
Plaintiff failed to file reply to the NM 2494/19.
Therefore, NM is to proceed without reply against the plaintiff.
Therefore, adjourned for hearing to 16.12.2019.
Next Purpose: HEARING
Next Hearing Date: 16-12-2019
Date: 16-12-2019
Business: Adv. V.N. Mishra for plaintiff present.
Adv. Bandiwadekar for defendant no 2 present.
KB
LO
Adv. V.N. Mishra for plaintiff present.
Adv. Bandiwadekar for defendant no 2 present.
Application filed by plaintiff to set aside order of no reply.
Say filed by defendant no 2.
Order-
Notice of motion no 2494/19 was proceeded without reply against the plaintiff.
Plaintiff has prayed for setting aside said order and to take replyon record.
Considering the reason assigned the application and in the interest of justice and fair trial order dated 30.11.2019 is set aside and reply filed by plaintiff is taken on record.
Copy of reply is served upon other side.
Adjourned for 23.01.2020 for NM hearing.
Next Purpose: HEARING
Next Hearing Date: 23-01-2020
Date: 23-01-2020
Business: Adv. V. N. Mishra for plaintiff present.
Adv. Bandiwadekar for defendant present.
Heard both sides.
KB
LO
Order passed below Notice of Motion No.2494 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff, roznama of proceeding. Heard respective counsel for parties.
Notice of motion is taken out by the defendant Nos.1 and 2 for condoning delay caused in filing written statement and to take the same on record.
It is the contention of defendants that writ of summons was served upon them on 28.12.2017. They appeared in person before the Court. Since the date of filing of the suit plaintiff and his son through their mediator tried to settle the matter with defendants. However, on the other hand plaintiff was pursuing the matter before this Court in order to extract money from them. Only few months back defendants appointed advocate on record and after discussion it revealed that mandatory period of filing written statement has already elapsed. Their advocate instructed them to collect and hand over her relevant documents in relation to the suit for the purpose of drafting written statement. Thereafter, they started collecting documents. Some documents were lying with financial institutions but due to financial constrained and change of management they could get relevant records recently. Thereafter, they approached their advocate for drafting written statement and after several deliberations written statement has been finalized. More so, defendant No.2 was unable to attend the office of Registrar for the purpose of affirmation of said written statement as he was engaged in his work of company where he is employed in the capacity of Senior Manager. In above circumstances defendants have prayed in above terms.
Plaintiff opposed notice of motion by filing reply. It is contended that delay caused is intentional, deliberate and without any reasonable excuse. Accordingly, it is prayed that notice of motion be dismissed.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances 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). In view of this legal position, now, I consider notice of motion.
On perusal of roznama it is apparent that although defendant Nos.1 and 2 appeared on 15.01.2018 but they engaged advocate on 16.11.2018. Possibility cannot be ruled out that because of some deliberation relating to settlement of the matter they have not engaged advocate at the earliest. They have also assigned reason that they could get the documents relevant for drafting of written statement after long duration and meanwhile defendant No.2 was not available for affirmation due to his employment engagement. Considering the reasons assigned in the facts of matter it is unjust to deprive defendants from contesting the matte on merits. Therefore, in the interest of justice and fair trial I am inclined to allow present notice of motion subject to imposition of costs upon them. Hence, pass following order-
ORDER
1. Notice of Motion No.2494 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.5000/- (Rupees Five Thousand only) to the plaintiff within period of two weeks from the date of this order.
Defendant Nos.1 and 2 are at liberty to deposit the costs payable to the plaintiff in the Court.
2. After payment of costs, written statement of defendant Nos.1 and 2 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 25.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 23-01-2020