Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3589 OF 2019
IN
S.C.SUIT NO.1997 OF 2018
Swati Spentose Pvt.Ltd. .... Plaintiff
V/s
Sukhjendra Kumar Arora & Ors. .....Defendants
APPEARANCE:
Advocate Darshan Mehta for plaintiff.
Advocate Nachiket Patkar for defendant no.1.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 19th November, 2019
ORDER
Perused Notice of Motion alongwith affidavit and reply filed by
plaintiff.
2. It is submitted by defendant no.1 that plaintiff has filed suit
against him and writ of summons were issued on or about 10.08.2018
and the same was served on defendant no.1 on or about 16.08.2018. It
is further submitted that after retirement he was living in United State
of America and when in India he stay at his residential address in the
clause title. It is further submitted that at the time of service of writ of
summons he was in United State of America and that person who
accepted service on his behalf could not understand that these are legal
proceeding and did not inform him. It is further submitted by the
defendant no.1 that he is residing outside of India he could not look
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into the matter and appointed an advocate to take necessary steps and
he come to India and approached his advocate and sent papers to him.
However, thereafter he again left in United state of America and again
was there for a long period of time. It is further submitted that written
statement has been drafted and approved by me over Email. However,
due to his absence the same could not be signed and filed in the court.
It is further submitted that delay of 196 days has been caused for filling
written statement and the said delay for filling written statement is
neither willful nor intentional but for bonafied reason. Lastly, it is
submitted that delay may be condoned and he may be permitted to
tender written statement on record.
3. The plaintiff has filed written say and resisted the contention
mentioned in the Notice of Motion. It is contended by the plaintiff that
the defendant no.1 has not shown any sufficient cause for condonation
of inordinate delay of 226 days for filling written statement. It is
further contended by the plaintiff that the defendant no.1 was
attempted to be served to the writ of summons as far as on 16.08.2018
which was duly returned by postal authority. It has further contended
by the plaintiff that the defendant no.1 himself admitted that he is an
Indian inhabitant having residential address in Navi Mumbai. He has
willfully negligent the suit proceeding by not accepting writ of
summons which was attempted to be served on him. It has further
contented by the plaintiff that as per O.VIII R.1 of C.P.C. defendant no.1
obliged to present written statement within 30 days from the date of
service of writ of summons and the time can be extended upto 90 days
for sufficient reason. However, the defendant no.1 failed to show
exceptional reason failed to satisfy and explain the delay. Lastly, it is
prayed that Notice of Motion may kindly be dismissed with costs.
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4. I have heard Ld.Counsel for defendant no.1 Advocate Nachiket
Patkar and Advocate for plaintiff Darshan Mehta. As per the record
plaintiff has filed suit against defendant for damages under the
provision of Specific Relief Act 1963 and Indian Contract Act. After
filling suit writ of summons were issued for appearance of defendants
for settlement of issues. As affidavit of service filed by plaintiff on
record below Exh.4. It shows that the defendant no.2 Hemant Sharma
was served on 20.08.2018 to which the defendant no.1 “Unclaimed” the
service of writ of summons. However, the defendant no.2 appeared in
the Court on 27.03.2019 and defendant no.1 tendered vakalatnama on
30.04.2019. In the entire Notice of Motion the defendant no.1 did not
dispute his address. It is specifically stated by defendant no.2 in Notice
of Motion taken out by him that whenever he came to India he is
residing on his address which is mentioned in the clause title of suit.
Moreover, it is admitted by the defendant no.2 that the person which
available in his residential address received writ of summons without
challenging the address. Moreover, defendant no.1 appeared before the
court through his advocate on 30.04.2019 but failed to tender written
statement within a stipulated period. As rightly pointed out by Ld.
Counsel for plaintiff under O.VIII R.1 of C.P.C. it was obligatory on the
part of defendant to file written statement within 30 days provided that
if there is delay on the part of defendant to file written statement within
stipulated period time can be extended upto 90 days. However,
defendant has to show special reason for delay and also explain the
reasons of delay. Admittedly, the defendant no.2 himself admitted that
he was residing on the address which is mentioned in the clause title of
suit and the person who is received summons on behalf of him on his
address then there is no defective service of writ of summons on the
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side of plaintiff. Merely saying that defendant no.1 not residing in India
and after retirement he went to stay in United state of America is not
sufficient reason to consider the cause stated by defendant no.1 in his
Notice of Motion. The legal provision of CPC i.e. O.VIII R.1 of C.P.C. is
very clear if defendant shows special reason after 90 days then court
can consider the contention made in the Notice of Motion. But in
absence of explanation of delay to the satisfaction of the court O.VIII
R.1 of CPC does not permit to this court to condone the delay and
permit defendant no.2 to tender written statement. Under the above
mentioned reason I find that the contention of Notice of Motion does
not have any merit. Hence, I proceed to pass following order
ORDER
Notice of Motion No. 3589/2019 stands dismissed with costs.
Date:19/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 19/11/2019
Typed on :19/11/2019
H.H.J.Signed on :19/11/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19.11.2019 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
19.11.2019
JUDGMENT/ORDER signed by P.O. on 19.11.2019
JUDGMENT/ORDER uploaded on 19.11.2019
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