Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.3016 OF 2019
IN
S.C.SUIT NO.404 OF 2017
M/s.Creative Portico Private Limited .... Plaintiff
V/s
Mr.Haria Acharath Parakkat Mahalil .....Defendant
APPEARANCE:
Advocate K.H.Yadav for plaintiff.
Advocate Raghvendra Mehrotra for defendant
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 17th October, 2019
ORDER
Perused notice of motion @ affidavit and reply filed by the
plaintiff.
2. It is submitted by the defendant that the present suit is filed by
the defendant for recovery of amount. However, the matter is
proceeded exparte and no written statement against defendant. It is
further submitted that the defendant had received copy of plaint @
documents. On 19.10.2018 and thereafter service affidavit was filed by
the plaintiff on 20.12.2018. It is further submitted that the defendant is
residence of Chennai due to lack of communication of the defendant
with his previous advocate. He could not tender written statement
within stipulated time. It is further submitted that the defendant has
already under tremendous stress and hardship due to faulty cases
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instituted by the plaintiff having no merits and if the exparte order is
not set aside then the defendant suffer hardship. Lastly, it is prayed that
the order passed against defendant be set aside.
3. Plaintiff resisted the Notice of Motion by filling written reply and
denied all the contention mention in the Notice of Motion. It is
contended by the plaintiff that the Notice of Motion is misconceived,
bad in law, and barred by law of limitation. It is further contended by
plaintiff that in response of writ of summons defendant appeared and
tendered vakalatnama of his advocate on 14.06.2017. It is further
contented by the plaintiff that since last 2 years defendant did not take
any steps in the matter and therefore, order was passed against him. It
has further contended by the plaintiff that the defendant willfully failed
and neglected to attend and appear before the court. It is further
contended by the plaintiff that copy of plaint and annexture was sent to
the Board Department which was duly acknowledged by the defendant.
It is further contended by the plaintiff that the defendant deliberate
causing delay to tender written statement. it is further contended that
the defendant has approached to the court without any proper reason.
Finally it is prayed that Notice of Motion is liable to be dismissed.
4. I have heard Ld counsel for defendant it is submitted that
defendant is resident of Chennai. He fairly admitted that on behalf of
defendant advocate tendered vakalatnama however, copy of plaint and
annexture did not receive to the defendant and therefore, he could not
tender written statement on record within a stipulated time. It is
further submitted by the counsel for the defendant that earlier advocate
had not given any instruction to defendant no.1 and because of
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miscommunication no written statement order was passed against
defendant no.1. He pointed out that the defendant has very good case
on merit if opportunity is given to the defendant to contest the suit by
filing written statement then he has every chance to succeed. Lastly ,it is
submitted that no written statement order dated 29.01.2019 be set
aside and defendant be permitted to take part in the present proceeding
by way of filing written statement.
5. Per contra Ld counsel for plaintiff submitted that the defendant
no.1 appear and tendered vakalatnama of his advocate on 14.06.2017.
He drew my attention towards affidavit in service and submitted that
the Board Department filed detailed report on affidavit. It shows that
the copy of plaint and annexture was sent to the address of defendant.
Therefore, no question would be arise to tender copy of plaint and
annexture to the defendant again. It is further submitted by the counsel
for the plaintiff that the defendant does not explain the reason for
delay. He also failed to file written statement alongwith Notice of
Motion. He pointed out that delay has been not explained by the
defendant in the Notice of Motion. Under such circumstances the notice
of motion does not survive and lastly it is prayed that notice of motion
be dismissed with cost.
6. After gone through the submission advance before me I have
perused entire record of Suit No. 404 of 2017. The present suit is filed
by plaintiff against defendant for recovery of amount. After filling suit
writ of summons is issued for appearance of defendant. As per record in
response of writ of summons defendant appear and filed vakalatnama
of his advocate below Exh3 on 14.06.2017. But he did not register his
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objection that he does not served copy of plaint and annexture by the
plaintiff. Later on admittedly my Ld. Predecessor had given direction to
the plaintiff to serve the copy of plaint and annexture to the defendant
time to time. However, since 29.01.2019 the plaintiff has not comply
the direction given by the court and finally no written statement order
was passed on 29.01.2019. At the time of argument Ld counsel for
defendant raise the point that he does not getting copy of plaint and
annexture from the plaintiff to which plaintiff has drew my attention
towards the affidavit in service below Exh4. Perusal of Exh4 shows
that the concern clerk of Board Department submitted his report on
affidavit that the writ of summons had been sent to the defendant @
copy of plaint with all the annextures. It means Board Department has
rightly observed the procedure and sent writ of summons with the copy
of plaint and annexture to the address of defendant. But defendant did
not raise this point as earliest. Moreover, Exh4 clearly shows that the
copy of plaint and annexture was sent by office to the address of
defendant. It is not a case of defendant that he does not receive writ of
summons. Moreover he acknowledges writ of summons by way of his
appearance in the court. Therefore, I do not found any merit in the
contention of Notice of Motion which is raised by defendant that he
does not receive copy of plaint and annexture.
7. Secondly as per O VIII R.1 of CPC it was obligatory on the part of
defendant to tender written statement within 30 days provided that if
he failed to tender written statement within 30 days then time can be
extended for the period of 90 days if defendant show special reason for
delay. In the entire Notice of Motion the defendant has keep mum
regarding delay. It is not specifically stated in the Notice of Motion
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about the delay neither the defendant specifically pleaded regarding
delay nor the delay is explained. Moreover, it is not prayer of defendant
to condone delay. Even though defendant does not show his
willingness to tender written statement. Defendant has only prayed for
setting aside no written statement order mere setting aside no written
statement order would not suffice the purpose of O.VIII R.1 of CPC. If
the defendant tendered the written statement with Notice of Motion
and explained delay then it will be considered on merit whether
permission to tender written statement is granted or not. But in absence
of special reasons and non filing written statement with Notice of
Motion. I found that the defendant has failed to comply the legal
requirement and under such circumstances I found that there is no
merit in the contention of Notice of Motion and hence I proceed to pass
following order
ORDER
Notice of Motion No.3016 of 2019 is dismissed.
Date:17/10/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 17/10/2019
Typed on :17/10/2019
H.H.J.Signed on :17/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
17.10.2019 at 12.20 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
17.10.2019
JUDGMENT/ORDER signed by P.O. on 17.10.2019
JUDGMENT/ORDER uploaded on 17.10.2019
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