Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2541 OF 2019
IN
SUIT NO.6432 OF 2004
I.C.I.C.I. Bank Ltd. ....Plaintiff
V/s
1. Nabsukh Vanvir Shah.
2. Rajendra H.Sethi. .....Defendants
APPEARANCE:
Advocate O.A.Das for plaintiff.
Advocate Madhavi Rai for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 19th November, 2019
ORDER
Perused Notice of Motion, affidavit in support and written reply.
2. Defendant no.2 tendered Notice of Motion for condonation of
delay for taken on written statement on record by setting aside "exparte
order" dated 16/1/2019. It is submitted by the defendant no.2 that the
originally plaintiff had filed suit in the Hon'ble High Court, Judicature
at Bombay and thereafter, it was transferred to the Court of City Civil at
Bombay. It is further submitted that the defendant no.2 served only
copy writ of summons without copy of plaint, therefore, he had made
correspondence to the plaintiff and also requested to fix appointment
for inspection. Thereafter, it is submitted by the Counsel for defendant
that the plaintiff had wrote letter and informed him merger of Sangli
Bank into ICICI Bank and all the original documents of High Court are
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transferred to Sangli Bank Office. It is further submitted that he had
drafted written statement on 20/9/2010 and tendered to the office of
Hon'ble High Court, however, it was not taken on record. It is further
pointed out by defendant that thereafter the suit is adjourned on one
and another reason and finally on 16/1/2019 "exparte order" passed
against defendant no.2. It is further submitted that he have good case
on merit and there is likelihood possibility to succeed in the said suit if
the matter is decided on merit. Lastly, it is submitted that if there is a
delay to tender written statement on record. It may kindly be condoned
and "exparte order" dated 16/1/2019 may kindly be set aside and
written statement tendered by defendant no.2 in the file before the
Hon'ble High Court be taken on record.
3. Plaintiff tendered written reply on affidavit and contest the
application. He denied entire contention made by defendant no.2 in the
Notice of Motion and contended that the writ of summons and the
plaint was served upon to the defendant no.1. Subsequently, upon
request of defendant no.2's advocate for plaintiff has served copy of
defendant no.2 on 25/4/2008 which was duly acknowledged by
defendant no.2. It is further contended by defendant no.2 that the
defendant no.2 mislead the court by stating that he did not receive the
copy of plaint and documents. It has further contended by the plaintiff
that the matter was subsequently transfered from Hon'ble High Court to
the City Civil Court. Plaintiff had sent affidavit in support of leading
secondary evidence to the defendant by registered post. Later on the
plaintiff had taken steps in the trial and finally the matter is posted for
hearing. It is further submitted by defendant no.2 that the defendant
no.2 failed to appear and no written statement was filed despite
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affording more than adequate time to file the same and finally order
was passed against defendant no.2 on 16/1/2019. It is further
contended that the defendant no.2 failed to explain the delay.
Moreover, it has not been mentioned in the Notice of Motion how may
days delay has been caused. It has been further noted that in
exceptional and extraordinary circumstances court has discretion to
permit defendant no.2 to file written statement beyond period of 90
days but defendant no.2 failed to show sufficient cause for not filing
written statement within a stipulated period. Lastly, it is prayed that
that the Notice of Motion may kindly be rejected.
4. I have heard Ld.Counsel for defendant no.2 Mr.O.A.Das and Ld.
Counsel for plaintiff. Admittedly, as per record initially the plaintiff has
filed suit against defendant no.2 in Hon'ble High Court. As per the
record defendant no.2 is served by way of writ of summons in July,2008
and thereafter in the year 2012 suit is transferred from Hon'ble High
Court to this court. It is to be noted here after execution of writ of
summons from July 2008 to till 2010 the defendant no.2 had failed to
tender written statement on record. Ld.Counsel for defendant no.2
drew my attention towards the correspondence filed by him in support
of Notice of Motion and particularly letter dated 15/10/2010 and
submitted that the defendant no.2 tendered the written statement on
record on 15/10/2010 but it will not be taken on record. In reply
Ld.Counsel for plaintiff submitted that, it is true as per the record the
defendant no.2 had tendered written statement by way of letter dated
15/10/2010 before prothonotary and Sr.Master of the Hon'ble High
Court, Original Side, Bombay but it was not taken on record on the
ground that the defendant no.2 tendered written statement after
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stipulated period of limitation. As per O.VIII R.1 of CPC it was upon
defendant to tender written statement within 30 days. Provided that if
defendant failed to tender written statement then time to file written
statement is extended upto 90 days, if defendant shows extra ordinary
and special reason. In the present suit the defendant no.2 does not
dispute execution of writ of summons in the month of July,2008. But
failed to show extraordinary and special reason why the delay has been
caused and delay has been caused due to special and extraordinary
reason. The defendant no.2 only raise finger towards procedural and
technical aspect but did not show any special or extraordinary reason in
the Notice of Motion to show that why the Prothonotary and Sr.Master
of Hon'ble High Court Original Side, Bombay has not taken written
statement on record as per his letter dated 15/10/2010. Further more,
defendant no.2 also failed to satisfy this court regarding delay and
reasons of delay. In absence of special and extraordinary reason O.VIII
R.1 of CPC does not permit to this court to condone the delay to take
written statement on record. Under the above said reason I come to the
conclusion that Notice of Motion does not have any merit. Hence, I pass
following order.
ORDER
Notice of Motion No.2541 of 2019 is dismissed with costs.
Date:19/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 19/11/2019
Typed on :19/11/2019
H.H.J.Signed on :19/11/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19.11.2019 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
19.11.2019
JUDGMENT/ORDER signed by P.O. on 19.11.2019
JUDGMENT/ORDER uploaded on 19.11.2019
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