Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2979 OF 2019
IN
S.C.SUIT NO.2864 OF 2018
Mr.Abdul Karim Sultan Shaikh ... Plaintiff
V/s
The Friends' Cooperative Bank Ltd. ... Defendant
APPEARANCE:
Advocate for plaintiff is present.
Advocate for defendant is absent.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 15th January, 2020
Perused Notice of Motion @ affidavit in reply tendered by
plaintiff.
2. Advocate for defendant is absent. Advocate for plaintiff is present
before the court. It is submitted by defendant no.2 that the present suit
is filed by plaintiff against defendant for recovery of amount. It is
further submitted that defendant appeared after execution of writ of
summons however, failed to tender written statement and therefore,
order dated 11.06.2019 was passed and suit was proceeded without
written statement. It is further submitted by the defendant no.2 that
delay has been caused 150 days. It is further submitted that the plaintiff
has filed present suit without permission of District Deputy Registrar
U/s.107 of MSC Act 1960. It is further pointed out by defendant no.2 as
per order dated 31.10.2018 passed by District Deputy Registrar and
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closed the liquidation proceeding and canceled the registration of the
bank and appointed custodian. It is further submitted that defendant
no.1 bank is no more in existence and the liquidation proceeding has
been abolished therefore, the present defendant are not in existence as
per the order dated 31.10.2018. It is further submitted by the defendant
no.2 that now custodian has been appointed therefore, he had given
instruction to his present advocate to appear before the court however,
order of no written statement dated 11.06.2019 was passed against
him. Defendant no. 2 submitted that there is delay however, it is not
intentional and deliberate on the part of defendant. Lastly, it is prayed
that the defendant have very good case on merit and if the matter is
proceeded without written statement then defendant will be suffered
heavy loss which cannot be compensated in terms of money. Lastly, it is
prayed that Notice of Motion may kindly be allowed and order dated
11.06.2019 may kindly be set aside and defendant no.2 may kindly be
permitted to tender written statement on record.
3. Plaintiff opposed Notice of Motion by filing written say. It is
contended by the plaintiff that Notice of Motion is liable to be dismissed
with costs because the delay has been cause of 150 days. However,
there is no prayer or explanation in the Notice of Motion regarding
delay. It is further pointed out by plaintiff that there is no prayer at all
for condonation of 150 days delay. Thus, in the absence of specific
period court cannot grant that prayer which is not at all prayed by the
defendant. It is further contended by the plaintiff that court can only
condone delay on exceptional circumstances however, plaintiff has
failed to explain the reason and exceptional circumstances to condon
the delay, no satisfactory ground and reasoning given by defendant
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no.2. Lastly, plaintiff prayed that Notice of Motion may kindly be
dismissed with costs.
4. After filing Notice of Motion defendant no.2 remained absent.
Advocate for defendant no.2 failed to attend the matter on behalf of
defendant no.2 therefore, I have heard Ld counsel for plaintiff and drew
my attention towards record. Admittedly, as per the record it is not
disputed by both the parties that 150 days delay has been caused for
filing written statement and order was passed on 11.06.2019. As per
O.VIII R.1 of CPC defendant should file written statement within 30
days. After execution of writ of summons provided that if defendant
failed to file written statement within 30 days then time can be
extended for the period of 90 days. As I stated above the defendant no.
2 had failed to tender written statement within stipulated time as
contemplated under O.VIII R.1 of CPC. However, defendant prayed to
condone delay by setting aside order dated 11.06.2019 however, failed
to show the exceptional ground for delay. As rightly pointed out by
advocate for plaintiff that plaintiff failed to pray in the Notice of Motion
for condonation of delay and in absence of prayer on the side of
defendant court cannot grant relief to defendant no.2. Therefore, I
come to conclusion that there is no exceptional ground for condonation
of delay. There is no prayer on behalf of defendant for condonation of
delay. Under such circumstances O.VIII R.1 of CPC does not permit to
this court to grant relief in favour of defendant no.2. Therefore, I
proceed to pass following order
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ORDER
Notion of Motion No. 2979/2019 is dismissed with costs.
Date:15/01/2020 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 15/01/2020
Typed on : 15/01/2020
H.H.J.Signed on : 15/01/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15/01/2020 at 4.30 p.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
15/01/2020
JUDGMENT/ORDER signed by P.O. on 15/01/2020
JUDGMENT/ORDER uploaded on 15/01/2020
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