Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2860 OF 2019
IN
S.C. SUIT NO.55 OF 2019
M/s. Kaiser Industries Ltd. ]… Applicant/Defendant
In the matter between
M/s. PNR Impex ] … Plaintiff
V/s.
M/s. Kaiser Industries Ltd. ] ... Defendant
Appearances :
Mr. Shah, Adv. for plaintiff.
Ms. Harsha Vaidya, Ld. Adv. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 16th December, 2019
ORAL ORDER
1. Defendant has taken out this Notice of Motion for
condonation of delay in filing written statement.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and say of the plaintiff. Heard both the sides.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
MHCC01-007893-2019
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2 NM 2860/19 in
SC Suit 55/19
Sr. No. POINTS FINDINGS
1. Whether delay in filing the written
statement can be condoned?
In the affirmative.
2. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the defendant that writ of
summons was served upon the defendant Company on 21.1.2019.
Authorized representative of defendant has to travel for business
purpose from one place to another. Defendant engaged Advocate to
defend it. The counsel represents the defendant Company received
complete set of plaint in the suit alongwith the annexures on 24.6.2019
before the Court, therefore, there is delay of 98 days in filing written
statement.
5. Plaintiff filed say that it submits to the orders of the Court
and cost be imposed on defendant.
6. Writ of Summons are served on 21.1.2019. As per Order 8
Rule 1 of Code of Civil Procedure the defendant has to file written
statement within 30 days from the date of service of summons. As per
the proviso of Order 8 Rule 1 where the defendant fails to file the
written statement within the said period of thirty days, defendant can
be permitted to file written statement within 90 days, if defendant
makes out grounds for delay in filing written statement. The proviso of
Order 8 Rule 1 is directory in nature. It is not mandatory.
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7. The Learned Advocate appearing for defendant has relied
upon one citation of Hon'ble Bombay High Court in the case of
Chintaman S. Kaklij Vs. Shivaji B. Gadhe 2004(5) Bom.C.R.573. The
Hon'ble Bombay High Court held that time limit of 90 days prescribed
by Amendment Act of 2002 under Order 8 Rule 1 of Code of Civil
Procedure in filing written statement in view of Rule 9 and 10 of the
Code of Civil Procedure is not mandatory.
8. There is delay in filing written statement, but the delay is
not inordinate and intentional.
9. Therefore, delay can be condoned and defendant can be
permitted to file written statement. Hence, I record my findings to
point No.1 in the affirmative and point No.2 the Notice of Motion is
allowed as per final order. Hence following order:
ORDER
Notice of Motion No.2860 of 2019 is hereby allowed as under:
1. Delay in filing written statement is hereby condoned.
2. Written Statement of defendant is taken on record. It be read
and recorded.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 16/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 16/12/2019.
Transcribed on : 24/12/2019.
Signed on : 27/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.01.2020 at 12.35 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 16.12.19
Judgment/order signed by P.O. on 27.12.19
Judgment/order uploaded on 01.01.2020
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