Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.3659 OF 2019
IN
SUIT NO.2871 OF 2018
Sayyed Abbas Ali ..Plaintiff
Versus
1. Tata Power Company Ltd. Staff
Superannuation Fund and anr ..Defendants
Appearance:-
Ld. advocate Siddiqui for plaintiff
Ld. advocate Dhruv Joshi for defendant no.1
Ld. advocate Jyoti Padvalkar for defendant no.2
CORAM: HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(CR NO.20)
DATE: 25/02/2020
ORAL ORDER
1. Defendant no.1 took out this Notice of Motion for
condonation of delay in filing the written
statement on record.
2. Perused Notice of Motion, affidavit in support of
Notice of motion.
3. Heard both the sides.
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4. Following points arise for my determination. I
record my findings thereof for the reasons
mentioned below:
Sr.
No.
Points Findings
1. Whether delay in filing the
written statement by
defendant no.1 can be
condoned?
In the affirmative.
2. Whether defendant no.1 can
be permitted to file written
statement on record?
In the affirmative
3. What order? Notice of motion is
allowed.
REASONS
5. In brief, it is the contention of defendant no.1
that defendant no.1 is trust. The suit was served
upon Tata Power Company Limited, being the
settlor of defendant no.1 trust on 06/05/2019.
Defendant no.1 was not served with the
proceedings directly. The copies of the
proceedings were thereafter lying with the said
company. The copy of the plaint was handed
over by the company to defendant no.1 trust on
02/07/2019. Some documents were required to
prepare the written statement. One ex-employee
of the company left employment over 14 years
ago. Thereafter defendant no.1 was unable to
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find out relevant papers of the matters. Defendant
no.1 got the papers by the end of August 2019.
Therefore there is delay in filing the written
statement.
6. Ld. advocate appearing for the plaintiff submitted
that if the Notice of Motion is allowed, heavy
costs may be imposed.
7. Perused Order 8 Rule 1 of Code of Civil
Procedure.
8. As per Order 8 Rule 1 of Code of Civil
Procedure, defendant has to file written statement
within 30 days from the date of service of
summons. As per the proviso of Order 8 Rule 1
where the defendant fails to file the written
statement within the said period of thirty days,
defendant can be permitted to file written
statement within 90 days, if defendant takes out
grounds for delay in filing written statement. In
view of Rule 9 and 10 of Code of Civil Procedure
the proviso of Order 8 Rule 1 is not mandatory
but it is directory in nature.
9. There is delay in filing the written statement.
Considering the nature of the suit and reasons for
non filing the written statement earlier, I am of
the opinion that to decide the suit on merits,
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defendant no.1 can be permitted to file written
statement. Hence, I record my findings on point
nos.1 and 2 in the affirmative and point no.3
Notice of Motion is allowed as per final order.
Hence, following order:-
ORDER
1. Notice of Motion No.3659 of 2019 is
allowed.
2. Delay in filing written statement of
defendant no.1 is condoned.
3. Defendant no.1 is permitted to file Written
statement.
4. Written statement of defendant no.1 is filed
with notice of motion, it be taken on
record.
5. Costs in cause..
25/02/2020 SHANKAR G.BORLEPWAR
Judge,(CR No.20)
City Civil Court,Gr.Mumbai
Dictated on: 25/02/2020
Typed on: 26/02/2020
Signed on: 09/03/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
11/03/2020 at 4.00 pm.
MRS.T.C.KAMBLE
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Name of the Judge SHANKAR G.BORLEPWAR, CR
NO.20
Date of Pronouncement of
judgment/order
25/02/2020
Judgment and order signed by P.O. 09/03/2020
Judgment/order uploaded on 11/03/2020
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