Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2998 OF 2019
IN
S.C.SUIT NO.2701 OF 2015
Anita Sanghavi .... Plaintiff
V/s
Kiran Puran Batavia & Ors. .....Defendants
APPEARANCE:
Advocate Darshan Mehta for plaintiff.
Advocate Gaurangi Patil for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 27th November, 2019
ORDER
Perused Notice of Motion alongwith affidavit and reply tendered
by plaintiff.
2. It is submitted by the defendant that the present suit is filed by
plaintiff against them for recovery of amount and they have been
served with the summons on 10/8/2018. It is further submitted by the
defendant that they are residing at Chennai and their family member
who is residing in Mumbai engage counsel by name Ganesh Chavan
who is assured them to appear in the case and accordingly the counsel
was filed vakalatnama from them and they also paid fees to him. It is
further submitted that the concerned advocate does not inform him
inspite of regular contact with him through mobile phone and by way of
Email. He informed that he will take care of the matter and therefore,
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they have shown trust upon him however, appointed advocate Ganesh
Chavan was not attending the matter, therefore, they approached to
another advocate and requested to tender vakalatnama on their behalf.
On that time they come to know that the earlier advocate failed to
tender written statement on record. It is further submitted that non
appearance of the defendant before the Court neither willful nor
deliberate but due to bonafied reason they failed to appear before the
Court and filed their written statement. It is pointed out that the
defendant have good case on merit unless an opportunities is given they
will suffer loss, injury. Lastly, it is submitted that they are the resident
of Chennai and aged of 73 years suffering from old aged illness and
therefore they are unable to travel to Mumbai. Lastly, it is prayed that
delay of 221 days for filing written statement is condoned and by
setting aside no written statement order dated 2/3/2019 leave may be
granted to defend the suit.
3. Plaintiff opposed Notice of Motion by filing written reply. It is
contended by plaintiff that no sufficient reasons given by the defendants
to condone delay of 221 days. It is further contended by the plaintiff
that no document tendered by defendants on which it is shows that the
reason and delay can be condoned. It is further pointed out by counsel
for plaintiff that there is no vakalatnama of advocate Ganesh Chavan on
record. There is no documents on record to show that there is
communication on behalf of advocate on record. Lastly, it is prayed that
the Notice of Motion kindly may be dismissed with cost.
4. I have heard Ld.Counsel for defendant and Counsel for plaintiff.
As per the record the defendant nos.1 to 3 served on 8/8/2018
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however, they failed to appear before the Court or engage advocate on
behalf of them to appear before the Court on their behalf. As per their
contention they have engaged advocate Ganesh Chavan to act on their
behalf but there is no vakalatnama of advocate Ganesh Chavan is on
record. Further more, advocate for defendant Chandrakant Mali
tendered vakalatnama on behalf of defendant nos.1 to 3 on 2/3/2019
however, failed to tender written statement on behalf of defendant
nos.1 to 3. As per O.VIII R.1 of C.P.C. defendant nos.1 to 3 is obliged to
tender their written statement within 30 days after the execution of writ
of summons. As per the proviso time can be extended upto 90 days if
the defendant nos.1 to 3 shows special or extraordinary valid reason.
Defendant nos.1 to 3 in first part of Notice of Motion mentioned that
advocate is responsible for non filing of written statement after their
instructions. But there is no documentary evidence on record to show
that they have instructed advocate Ganesh Chavan and instead of
instruction advocate Ganesh Chavan failed to file written statement on
behalf of defendant nos.1 to 3.
5. Secondly, the defendant nos.1 to 3 raised ground that the
defendant is senior citizen. As per the record no exact age is written by
any of the party in their pleading, therefore, it is very difficult to
ascertain who is senior citizen. Moreover, there is no evidence adduced
by defendant on record to show that the defendant no.1 is senior
citizen. It is to be noted here the defendant no.1 mentioned ground in
the Notice of Motion that she is suffering from old age illness and
unable to travel to Mumbai. She support the ground by filing copies of
medical reports on record. I have perused medical reports. It is shows
that she had taken medical treatment in the year 2016 but suit is filed
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against her in the year 2015. Admittedly, once she tendered
vakalatnama alongwith instruction to the advocate I am of the opinion
that no physical presence of her is required before the Court. But she is
stated that she has been instructed by advocate but advocate failed to
act as per her instruction. I found that the reason explained by
defendant at all not came into the ambit of special or extraordinary
valid reason and therefore, I found that O.VIII R.1 of C.P.C. does not
permit to the court to condone delay of 221 days because defendant
failed to explain the extraordinary reason of delay therefore, I find
Notice of Motion does not have any merit. Hence, I proceed to pass
following order.
ORDER
Notice of Motion No.2998 of 2019 is dismissed with costs.
Date:27/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 27/11/2019
Typed on :27/11/2019
H.H.J.Signed on :27/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27.11.2019 at 5.30 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
27.11.2019
JUDGMENT/ORDER signed by P.O. on 27.11.2019
JUDGMENT/ORDER uploaded on 27.11.2019
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