Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2188 OF 2018
IN
SUIT NO.2220 OF 2017
Bharti Mahesh Thakkar ...Plaintiff.
V/s.
1. Ms.Mansachi Kaur Alia Roshni Bipin
Thakkar
2. Punjab and Sind Bank ...Defendants.
Appearances:
Ld. Adv Mr.S.T. Manek for plaintiff.
Ld. Adv.Ms.Nisha Vardhan for defendant No.1.
Ld. Adv.Mr.Darshan Adake for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 27th March,2019
ORDER
By way of this notice of motion defendant No.1 prayed for
condonation of delay of seven days in filing written statement on
record.
2. In supporting affidavit of Ms.Mansachi Kaur Alia Roshni Bipin
Thakkar for defendant No.1, submitted that there was delay in filing
written statement on record. They have calculated it to the tune of
seven days from the date of service of the writ of summons and
therefore, prayed that written statement be taken on record by
condoning delay. She submitted that she is partner of “M/s. Tirupati
MHCC01-007076-2018
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Traders” in which she was having 25% share with plaintiff and one
Mr.Madhubhai Thakkar. She requested to provide details of the
accounts and financial documents of Firm as she was not getting the
profit from the said firm. Madhubhai and plaintiff was mismanaging
the accounts of Firm and siphoning of money. The plaintiff filed the
present suit in an individual capcacity and subject matter is of
partnership account. As per clause 12 of the Partnership Deed there is
provision of Arbitration. When she received summons, she was under
impression that matter will be decided by Arbitrator. Therefore, she did
not contact Advocate to take legal advise. When she approached the
Advocate in the third week of January,2018 she came to know that she
has to file written statement. As she is permanent resident of Kutchh,
Gujarat she could not collect documents and therefore, time was spent
in collecting documents and to contact with the Advocate. Thereafter,
time was spent on approval of draft written statement sent to defendant
No.1 by the Advocate. As such, there is delay in filing in written
statement. In the circumstance, defendant No.1 prayed that notice of
motion be allowed and she be permitted to file written statement on
record by condoning delay.
3. After service of the notice of motion upon plaintiff, she filed her
reply and strongly opposed the notice of motion. They submitted that
there is no explanation given by defendant No.1, who served with writ
of summons on 13.10.2017 and notice of motion came to be
tendered at belated stage on 14.06.2018 and there is no plausible
explanation for condoning delay. The delay of seven days calculated by
defendant is also false and it is of 138 days delay in filing written
statement which cannot be condoned on record. It is negligence and
failure on the part of defendant No.1 to show reasonable and sufficient
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cause to condone delay of 138 days. Therefore, notice of motion
deserves to be dismissed with costs.
4. Heard learned Advocate for both the sides. Perused the
submissions and record.
5. On going through the submissions of learned Advocate Ms.Nishad
Vardhan for defendant No.1 it is interesting to note that suit came to be
tendered by plaintiff against defendant Nos.1 and 2 on 21.09.2017 for
recovery of Rs.1,40,000/ with interest 12% per annum. As per record
writ of summons came to be served upon defendant No.1 on
13.10.2017 and even defendant No.1 appeared through Advocate
Ms.Laxmi Thakur on 31.01.2018. But they have failed to file written
statement on record and suit proceeded without written statement
against defendant No.1 and thereafter, this notice of motion came to be
tendered.
6. If we go through the submissions and pleadings of defendant
No.1 they have calculated delay of seven days. How they calculate it,
nowhere it is explained. Even in averments of supporting affidavit
number of delay is kept blank. It has only submission that as she is
residing at Kutchh the delay is occurred. Therefore, they sought
permission to file written statement by condoning delay of seven days.
7. The mandate under O.VIII R.1 of C.P.C. is sufficient enough
which emphasis that written statement should be filed within 30 days
from the date of service of writ of summons or at least within extended
period 60 days with plausible explanation. It is admitted that
defendant No.1 came to be served on 13.10.2017 and therefore, as per
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mandate period to file written statement came to end on 13.11.2017
and/or at least in the extended period upto 13.01.2018. The notice of
motion came to be tendered on 14.06.2018, which is quite after the
prescribed period to set aside the 'no written statement order'. Even
there is no prayer to set aside no written statement made nor there is
any plausible explanation given by defendant except that she is residing
at Kutchh defendant No.1 could not give necessary instructions to her
Advocate to file written statement on record in time.
8. Therefore, unless and until there is reasonable cause shown with
proper evidence, the negligence and failure on the part of defendant
No.2 cannot be attributed to condone delay of more than four months
in filing written statement, since the date of filing written statement
upon them or even after passing order “no written statement” within 30
days to get it set aside, shows lethargy on the part defendant No.1.
Therefore, the observations of Hon.Supreme Court in the case of
ATCOM TECHNOLOGIES LIMITED Versus Y.A. CHUNAWALA AND
COMPANY AND OTHERS, (2018) 6 Supreme Court Cases 639
specifically deals with the words “shall not be later than ninety days” is
squarely applicable in this case. The Hon.Supreme Court has observed
that :
“The proviso to Order 8 Rule 1 CPC enables the court to
extend the period of 30 days prescribed under Rule 1 up
to 90 days from the date of service of summons for
filing written statement for sufficient reasons. No doubt
the words shall not be later than ninety days” in the
proviso to Order 8 Rule 1 do not take away the power
of the court to accept written statement beyond that
time as the nature of the provision is procedural and
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directory and not a part of the substantial law. But time
can be extended only in exceptionally hard cases. In
such a situation, onus upon the defendant is of a higher
degree to plead and satisfactorily demonstrate a valid
reason for not filing the written statement within thirty
days.”
9. In view of above observations of Hon.Apex Court if the discretion
is to be exercised then it must be with exceptional hard case, where
reasonable sufficient cause is shown and established by defendant to
explain the delay in filing written statement within stipulated period.
In such circumstance, I do not find any substance in this notice of
motion to condone delay and permit defendant No.1 to file written
statement on record. Therefore, notice of motion deserves to be
rejected. In such circumstances, parties are directed to bear their costs
and hence, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.2188 of 2018 stands rejected.
2. Parties to bear there own costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 27/03/2019 City Civil Court, Gr. MUMBAI
Dictated on : 27.03.2019
Transcribed on : 28.03.2019
Signed on : 28.03.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.03.2019 at 4.29 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 27.03.2019
Judgment/order signed by P.O. on 28.03.2019
Judgment/order uploaded on 28.03.2019
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