Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2591/2019 L.C. Suit No.3237/2013
CNR No. MHCC010071232019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2591 OF 2019
IN
L.C. SUIT NO. 3237 OF 2013
1. Shri. Suresh Sudam Satpute )
Aged 49 years, Occupation Service )
2. Mrs. Jayashri Suresh Satpute )
Aged 42 years, Occupation : Housewife, )
both residing at Kripa Sindhu Cooperative )
Housing Society Ltd., Bldg No.164, )
Room No.201, Samata Nagar, Kandivali (East), )
Mumbai 400 101. ).. Plaintiffs
Vs.
1. The Director, C.D.P. India Pvt. Ltd., )
Having their office, address at 299, Shanta )
Ashram Building, Tardeo Road, Nana Chowk, )
Mumbai 400 007. )
2. Managing Director, Marathon Nextgen Era )
in Marathon Compound of Marathon Tower, )
Off. E.K. Road, Lower Parel, Mumbai 400 013 )
3. The Municipal Corporation of Gr. Mumbai )
acting through The Municipal Commissioner, )
Tree Officer, 'G/South' Ward, Mumbai, )
Mapapalika marg, Mumbai 400 018. )
4. Marathon Nextgen Realty Ltd., )
having their address at Marathon Furniture, )
Mafatlal Mill Compound N.M. Joshi Marg, )
Lower Parel (W), Mumbai 400 013 )...Defendants
APPEARANCE:
Ld. Adv. Mr. P.Y. Kulkarni for the plaintiffs.
Ld. Adv. Mr. Anil Agrawal for the defendant No.1
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Ld. Adv. Mr. Kumawat for the defendant No.3/MCGM.
Ld. Adv. Mr. Tare for the defendant No.4.
CORAM : HER HONOUR ADHOC JUDGE
SMT.C. P. JAIN (C.R.NO.06)
DATED : 24th JANUARY, 2020.
O R D E R
This Notice of Motion No.2591/2019 is taken out by
defendant No.3/MCGM praying to set aside the order dated 09.10.2014
& permit it to file its written statement.
2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant that defendant being statutory and public body
and a vast organization, due to heavy workload this defendant failed to
file the written statement in time. Defendant was required to take
instructions from different departments and it was not possible to get
the draft of written statement approved within stipulated time.
Defendant has very good case and unless this defendant files the
written statement, the correct facts and legal position will not be
pointed out to the court. Defendant therefore prayed to allow its notice
of motion.
3. Plaintiff has resisted the aforesaid notice of motion by
filing his reply. According to plaintiff, notice of motion is hopelessly
time barred as per the law of limitation. Present notice of motion as
well as affidavit in support is absolutely vague, the defendant failed to
make out the primafacie case for condonation of delay as prayed for in
the notice of motion. Defendant apparently failed to explain the
reasons on merits, for the delay caused in filing the present notice of
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motion. Defendants have not given any proper and specific reasons, for
the delay caused in filing the present notice of motion. Defendant
cannot sleep over their legal rights, due to their own negligence and
afterwards take disadvantage of his own negligence and wrong, by
filing vague application or notice of motion. Writ of summons of this
case as per court record, is duly served upon the defendant on
26.03.2014. Defendant was under mandatory obligation to explain day
to day delay caused in filing the notice of motion. For aforesaid
reasons, he prayed to dismiss the notice of motion.
4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
pleadings in the notice of motion and reply filed on record.
5. I have given anxious consideration to arguments of both
the learned advocates. At the outset, it is not in dispute that in order to
condone delay, defendants have to make out sufficient cause. What is
sufficient cause has been explained in the citation of Balwant Singh
(Dead) V/s. Jagdish Singh and others reported in (2010) 8 SCC 685.
Liberal construction of the expression “sufficient cause” is intended to
advance substantial justice which itself presupposes no negligence or
inaction on the part of the applicant, to whom want of bonafides is
imputable. The expression “sufficient cause” implies the presence of
legal and adequate reasons. The word “sufficient” means adequate
enough, as much as may be necessary to answer the purpose intended.
It embraces no more than that which provides a plentitude which,
when done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be such as it
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would persuade the court, in exercise of its judicial discretion, to treat
the delay as an excusable one. The party should show that besides
acting bonafide, it had taken all possible steps within its power and
control and had approached the court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due case and
attention.
6. In light of aforesaid legal pronouncement, it needs to be
seen as to whether defendant has made out sufficient cause for
condoning the delay or whether plaintiff has succeeded in bringing on
record inaction, negligence, malafides on part of defendant, to reject
the notice of motion of defendant.
7. Defendant has affirmed on oath the reasons for which
delay is caused in filing written statement. According to him, defendant
being statutory and public body and a vast organization, due to heavy
workload this defendant failed to file the written statement in time.
Defendant was required to take instructions from different departments
and it was not possible to get the draft of written statement approved
within stipulated time. For aforesaid reasons, there is delay which is
unintentional and not deliberate.
8. Defendant has made out reasons in their notice of motion
as to why it could not file written statement within time. As no doubt is
created in aforesaid reasons, it can be safely said that defendant has
made out sufficient cause to condone the delay. No inaction, negligence
or malafides are pointed out by plaintiff. Therefore, Defendant has
made out sufficient cause can be concluded.
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9. The observations in the cited case of R.N. Jadi & Brothers
V/s. Subhashchandra reported in (2007) 6 SCC 420 further come to
aid of defendants in which it is observed that, Procedural law is
handmaid of justice. In an adversarial system, no party should
ordinarily be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific language
of the statute, the provisions of CPC or any other procedural enactment
ought not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. Therefore, the
arguments of learned advocate for defendant needs to be countenanced
as against the arguments of learned advocate for plaintiff.
10. According to plaintiff, the defendant corporation is served
with writ of summons on 26.03.2014. However, there is no affidavit of
service tendered on record. No doubt defendant BMC had appeared in
notice of motion. But there is nothing on record that defendant BMC
has waived service of writ of summons. Therefore, as is objected, it
cannot be concluded that there is delay of more than 5 years in moving
this notice of motion. Considering the fact that defendant is statutory
body, and there being no affidavit of service of writ of summons,
defendant BMC needs to be given benefit.
11. However, though there is nothing on record that the delay
caused is malafide, considering the period elapsed, it cannot be
concluded that the delay is short delay. Though defendant corporation
is statutory body, law is equal for all. The mandate of Order 8 Rule 1 of
Code of Civil Procedure is equally applicable to defendant corporation.
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Applying the principles laid down in the aforesaid citations and Order
8 Rule 1 of CPC being directory in nature, suit needs to be decided on
merits by giving opportunity to defendant. Therefore, notice of motion
of defendant deserves to be allowed on costs. Therefore, I proceed to
pass following order.
ORDER
1. The Notice of Motion No.2591/2019 is hereby allowed subject to
costs of Rs.2,000/(Rs. Two Thousand Only) to be paid by
defendant No.3/MCGM to plaintiffs on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 09.10.2014 passed against defendant No.3/MCGM
shall stand set aside so also the delay caused in filing written
statement shall stand condoned and the written statement
tendered on record by defendant No.3/MCGM shall be taken on
record.
3. The Notice of Motion No.2591/2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date :24.01.2020. City Civil Court, Gr. Bombay
Dictated on : 27.01.2020.
Transcribed on : 27.01.2020.
Signed on : 27.01.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.01.2020, 03.48 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
24.01.2020
JUDGMENT/ORDER signed by
P.O. on
27.01.2020
JUDGMENT/ORDER uploaded on 30.01.2020
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