Final Order 1

Order Details: Other
Pdf Text: 1.10.2019
Comm Su
16/19
NM
3624/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Sandeep Kothari for Plaintiff present.
Adv. Jinal Rathi for defendant present and tendered original Notice of motion No.3624 of 2019 – t.o.r.
KB
LO
Adv. Sandeep Kothari for plaintiff present.
Adv. Anand for defendant present.
Plaintiff filed reply to notice of motion.
Heard respective counsel for parties.
ORDER PASSED BELOW NOTICE OF MOTION NO.3624 OF 2019
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective counsel for
parties.
Notice of motion is taken out by the defendants to condone delay caused in filing written statement and
tendered written statement on record.
It is contended by defendants that writ of summons has been served upon them on 17.07.2019 but
they could not file written statement within period of 30 days from date of service of writ of summons. They
assigned reason that due to flood light situation in Gujarat it was extremely difficult to travel to Mumbai and
get in touch with advocate and to take necessary steps to file written statement. It is further contended that
after improvement of situation authorized representative of defendants had meeting with an advocate at
Mumbai. On above count defendants have prayed to allow notice of motion. Accordingly, urged in above
terms.
Plaintiff opposed notice of motion on the count that there is inordinate delay in filing of written
statement and no sufficient reason assigned to condone delay.
Provisions of Order VIII of CPC has been amended in relation to Commercial Suit instituted before
Commercial court and as per proviso to Rule 1 of Order VIII of CPC where the defendant fails to file the
written statement within the said period of 30 days, he shall be allowed to file the written statement on such
other date, as may be specified by the Court, for reasons to be recorded in writing and on payment of such
costs the court deems fit, but, which shall not be later than 120 days from the date of service of summons
and on expiry of 120 days from the date of service of summons, the defendant shall forfeit the right to file
written statement and the court shall not allow the written statement to be taken on record. Thus, it is clear
that court has discretion to take written statement on record for sufficient reason even beyond period of 30
days from date of service of summons upon the defendant but before expiry of period of 120 days from the
date of service of summons.
In present suit main reason assigned by the defendant is about the flood situation in the months of July
and August, 2019 in the state of Gujarat due to heavy rains where the company is situated. No doubt,
representative of company appeared in the matter on 1st August, 2019 in the Court but defendants have not
engaged advocate. Even on next date one Ms. Jinal Rathi, advocate appeared for defendants but she has not
filed vakalatnama on their behalf and undertakes to file vakalatnama on next date. On 28.08.2019,
vakalatnama was filed on behalf of defendant No.2. Possibility cannot be ruled out that due to flood
situation defendants could not engage advocate at the earliest and give instruction for drafting written
statement. While condoning delay the pragmatic approach is required to be taken. It is not accepted that
delay of each date is required to be explained. Further, delay caused is not inordinate and it cannot be said
that it is deliberate to delay the proceeding. Present notice of motion is made within period of 120 days of
service of writ of summons upon the defendant. Therefore, considering above facts and in the interest of
justice and fair trial I am inclined to allow notice of motion. However, keeping in view above provision it is
necessary to impose certain costs upon the defendants. Hence, pass following order
ORDER
1. Notice of Motion No.3624 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b)
subject to payment of costs of Rs.2000/- (Rupees Two Thousand only) to plaintiff within period of one week
from the date of this order.
Defendants are at liberty to deposit costs payable to plaintiff in Court.
2. After payment of costs defendants should file written statement on record.
3. Accordingly, notice of motion is disposed off.
Adjd for compliance to 09.10.2019.
Judge
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