Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM 2757/19 in Suit 72/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2757 OF 2019
IN
S.C. SUIT NO. 72 OF 2018
CNR NO. : MHCC010076002019
Ms. Radhika Mohan Dharmaraj …. Plaintiff
Versus
Shri. Raman Ramchandran alias Manoj & Ors. ….Defendants
Appearance:
Adv. Shri. Mohan Dharmaraj for Plaintiff.
Adv. Shri. Haresh Thacker for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 09.12.2021
ORAL ORDER
(Dictated in open Court)
The Notice of Motion is filed by the defendants to set aside
the order dated 17.07.2018 and allow the defendants to file Written
Statement. The Notice of Motion is supported by Affidavit of Smt.
Parvathy Ramchandran, the defendant no. 2. The defendants stated that
they have been dragged into the litigation without any genuine dispute
between the parties. The said dispute can be sorted out. The defendant
no. 1 is residing at Canada since last 2 and ½ years. The defendant no.
3 is residing at Kerala and the defendant no. 2 is residing at Chennai.
Therefore, it was not possible to all of them to come together to give
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instructions to file appearance/Written Statement. There is delay to file
Written Statement. Hence, prayed to allow the Notice of Motion.
2. The plaintiff through Constituted Attorney Shri. Mohan A.
Dharmaraj filed reply and objected stating the roznama of the suit to
show the opportunities granted to the defendants to appear and
proceed and the negligence on the part of the defendants to file the
Written Statement. The plaintiff has denied the contents of the Notice
of Motion in toto. The plaintiff stated without prejudice that in case the
opportunity is given to the defendants, then heavy cost be imposed.
3. Heard Advocate Shri. Haresh Thacker for the defendants
and Advocate Shri. Mohan Dharmaraj Constituted Attorney of the
plaintiff in person. Perused the contents of the Notice of Motion and the
reply supported by the Affidavit. I have also gone through the record.
4. The suit is filed by the plaintiff on 08.12.2017. The
defendants appeared in the suit for the first time on 26.09.2018 through
advocate Chhatre. The adjournments were sought by the defendants.
On 04.04.2019, by precipe the defendants through Advocate Babu filed
draft Notice of Motion. On 09.04.2019, time was extended to register
the Notice of Motion. On 08.07.2019 again Notice of Motion is filed by
Advocate Chhatre for defendant no. 2. It is this Notice of Motion which
is registered. The Notice of Motion filed on 04.04.2019 is not registered
and it is in the file.
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5. Advocate for plaintiff has relied on authority reported in
Pandurang @ Shashi Dessai Vs. Beraldin Tavaeres : 2007 (2) ALL
MR 660 that filling written statement within prescribed time should be
a rule and the departure would be only by way of an exception and the
same cannot be granted as a matter of routine merely for asking
specially when the period of 90 days had expired.
6. Advocate for defendants has relied on authority reported in
i. Shoraj Singh Vs. Charan Singh in Civil Appeal No. 6304 of 2021
@ SLP (C) No. 13129/2018 dated 08.10.2021 the Hon'ble Apex
Court held that the provision of Order 8 of rule are mandatory in the
commercial courts under the Commercial Courts Act, 2018. In view
of the Judgment in Kailash Vs. Nanhku & Ors : ( 2005) 4 SCC 480
that the period of 90 days for filling of written statement is directory.
ii. Ashok Kumar Mittal Vs. Ram Kumar Gupta & Anr. in Special
Leave Petition (Civil) Nos. 3099130992/2008 dated
09.01.2009
that Section 35A suggests that even where a suit or litigation is
vexatious, the outer limit of exemplary costs that can be awarded,
in addition to regular costs, shall not exceed Rs. 3000/.
7. I have gone through the authorities relied by the
defendants. The period of limitation to condone the delay is directory
and can be condoned on sufficient cause shown by the defendants. In
respect of cost, the facts relied in the ratio is different. The defendants
are seeking to set aside the exparte order. The defendants cannot seek
restriction. It is the delay on their part even though they were aware of
the proceedings, but did not appear and file the Written Statement. The
plaintiff needs to be compensated accordingly.
8. The nature of litigation is for compensation for mental and
physical harassment of the plaintiff during her matrimonial stay with
the defendants. The defendants have stated that as they are residing at
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separate places were unable to give the information for Written
Statement and appeared. The suit has proceeded exparte against the
defendant no. 2 & 3 on 18.04.2018 and on 16.07.2018 against the
defendant no. 1. The defendants desire to contest the suit by filling
Written Statement. Considering the nature of reliefs sought by the
plaintiff, it will be in the interest of justice to grant opportunity to the
defendants to file the Written Statement. No prejudice will cause to the
plaintiff, as she can be compensated with costs. Hence, pass following
order :
ORDER
1. The Notice of Motion is allowed by condoning delay on
payment of cost of Rs. 10,000/ (Rs. Ten Thousand
Only) to the plaintiff to be paid within one month.
2. On payment of the above cost within the above period,
exparte order against the defendant is set aside and
the defendants to file written statement immediately on
payment of costs.
3. Accordingly, the Notice of Motion is disposed of.
(SMT.S.S.Nagur)
Judge
City Civil Court,
Date :09/12/2021 Greater Mumbai.
Pronounced on : 09.12.2021
Dictated on : 09.12.2021
Typed on : 16.12.2021
Checked & Signed on : 17.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20/12/2021 2.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
09/12/2021
Judgment/order signed by P.O on 17/12/2021
Judgment/order uploaded on 20/12/2021
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