Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3257 OF 2019
IN
S.C. SUIT NO.2655 OF 2018
Mahesh Dhamecha … Plaintiff
V/s.
Mr. Manish Dayal Wadhwani … Defendant
Appearances :
Ld. Adv. Pratik Khadani for plaintiff.
Ld. Adv. Prerna Pagare for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 15th OCTOBER, 2019
ORDER
Defendant has taken out this notice of motion for setting
aside no written statement order and accepting the written statement
by condoning the delay of 66 days.
2. It is argued on behalf of defendant that on 03.05.2019 he
made his appearance through his advocate. Plaintiff has not served
complete copy of plaint and all exhibits alongwith it to defendant with
writ of summons. On 03.05.2019 on the request of his Learned Counsel
plaintiff has supplied the copies of exhibits. As such on 03.05.2019
complete service was made. The matter was listed on 07.06.2019 for
filing written statement. However, during said period his mother was
suffering from Kidney infection and was under treatment from
10.06.2019 till 24.06.2019. Therefore, he could not able to approach
his advocate for giving instructions for drafting the written statement.
MHCC010088802019
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NM 3257/2019 .. 2 .. Suit No.2655/2018
Therefore, Court has passed no written statement order. As such the
delay or absence is not intentional one. He has satisfactorily explained
the delay. Therefore, no written statement order may be set aside and
written statement be taken on record.
3. The Ld. Counsel for plaintiff has opposed this application
on the ground that false and imaginary grounds are raised by the
defendant. In fact on 15.04.2019 defendant put his appearance
through advocate. Therefore, he was having ample time to file written
statement. However, in order to delay the matter, defendant has
avoided and neglected to file the written statement. Therefore, the
delay is deliberate one. As such the written statement may not be taken
on record.
4. It is a matter of record that on 15.04.2019 defendant put
his appearance through advocate. On that day prayer was granted of
defendant for granting time to file written statement. So on 07.06.2019
defendant was expected to file written statement. Now the defendant
came with a defence that during said period his mother was ill. In
support of said contention certificate of doctor is produced on record
which states that her mother was under treatment from 10.06.2019 to
24.06.2019. In such circumstances it was excepted to defendant to take
care of his mother. Therefore, the absence of defendant is neither
intentional nor deliberate. As such defendant has satisfactorily
explained his none appearance and reason for none filing written
statement in time. In such circumstances the no written statement
order needs to be set aside.
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5. In addition to above observation, I may say that as far as
possible matter must be decided on merit by giving full and fair
opportunity to both the sides. In case of delay certain cost can be
imposed. Therefore, I am of the opinion that written statement can be
taken on record by imposing certain cost. Accordingly the order.
ORDER
1. NM No.3257/19 in SU No.2655/18 is hereby allowed.
2. The no written statement order dated 07.06.2019 and
delay of 66 days in filing the written statement is hereby
set aside on defendant paying cost of Rs.2,000/ to
plaintiff or to deposit it in the Court on or before next date.
3. On compliance of cost order written statement of defendant
be taken on record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 15/10/2019 City Civil Court, Gr. Mumbai
Dictated on : 15.10.2019
Transcribed on : 16.10.2019
Signed on : 17.10.2019
sbk/
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NM 3257/2019 .. 4 .. Suit No.2655/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17.10.2019 05.40 p.m. Sanjay B. Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
15.10.2019.
Judgement/order signed by P.O on 17.10.2019.
Judgement/order uploaded on 17.10.2019
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