Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.3181 OF 2019
IN
S.C.SUIT NO.9730 OF 1991
1. Ravi Kumar Shivlal Sidhwa and Anr. ... Plaintiffs
Versus
1. Sanjay Omprakash Sidhwa & Ors. ... Defendants
CORAM : HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 18th FEBRUARY, 2020
Ld.Adv.Sonam Kotak, for plaintiffs.
Ld.Adv.S.Venkateshwar for defendant nos.8 & 9.
Ld.Adv.N.R.Gandhi for defendant nos.1, 2(a), 2(b), 11 and 12.
O R D E R
1. This notice of motion is taken out by defendant nos.8 and 9
for condonation of delay caused in filing their written statement and for
accepting their written statement.
2. Defendant no.8 has field his affidavit stating that when the
suit was filed, defendant nos.8 and 9 were minors and after they
became major, plaintiffs have served the writ of summons upon them in
the month of February, 2019 and thereafter they have chosen to take
out this notice of motion and they have intending to file their written
statement to contest the suit and to protect their rights.
3. Plaintiffs have resisted the notice of motion by filing
affidavit of reply contending that this suit was filed when defendant
nos.8 and 9 were minors, however writ of summons was served upon
their legal guardian, hence defendant nos.8 and 9 have no justifying
reason in not filing their written statement. It is further contended that
after defendant nos.8 and 9 become major, amendment is carried out in
the plaint and again writ of summons were served upon them. As
mentioned in para-5 of affidavit of service of writ of summons, said writ
is served upon defendant nos.8 and 9 in February, 2019 after they
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became major. However, according to plaintiffs, defendant nos.8 and 9
failed to file their written statement without any justifying reason,
hence according to plaintiffs, the notice of motion is necessary to be
dismissed.
4. Heard defendants’ advocate Mr.Vyankateshwar and
advocate Ms.Sonam Kotak for plaintiffs. Admittedly, the writ of
summons was served upon defendant nos.8 and 9 in February, 2019
after they became major. The defendants, who have become major in
the pendancy of the suit, have every right to raise their own defence,
they have the choice, if already their guardian has filed written
statement on their behalf, to adopt it or to raise their independent
defence. In such circumstances, I find that defendant nos.8 & 9, who
are intending to contest the suit by raising their independent defence,
are entitled to raise it and therefore, the delay of about three months
caused in filing their written statement is necessary to be condoned. If
said delay will be condoned and written statement of defendant nos.8
and 9 will be accepted, no prejudice will be caused to plaintiffs because
plaintiffs will have the opportunity to disprove the defence raised by
those defendants and plaintiffs can cross-examine those defendants to
rebut their defence. Further, it is always better for every plaintiff to have
the decree on merits. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion No.3181 of 2019 is made absolute in terms of
prayer clauses (a) and (b) subject to cost of Rs.3,000/- to be paid
by defendant no.8 to plaintiff and subject to costs of Rs.3,000/- to
be paid by defendant no.9 to plaintiff.
Sd/-
(K.P.NANDEDKAR)
18/02/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 18/02/2020
Transcribed on : 12/03/2020
Signed by HHJ on : 12/03/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/03/2020 01.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 18/02/2020
Judgment/order signed by P.O on 12/03/2020
Judgment/order uploaded on 12/03/2020
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