Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4087 OF 2019
IN
L.C. SUIT NO.738 OF 2019
REEBOK INDIA COMPANY ] … Plaintiffs.
Vs.
SAI OM DEVELOPERS PVT. LTD. ] ... Defendants
Appearances :
Ms. Madhuri Raibagkar, Ld. Advocate for plaintiff.
Ms. Dakshita Tanavde, Ld. Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 24th January, 2020
ORAL ORDER
1. This Notice of Motion is taken out by the defendant to set
aside order dated 19.08.2019 proceeding exparte and/or without
written statement against the defendant, to condone delay in filing
written statement and to take written statement on record.
2. Perused Notice of Motion, affidavit in support of Notice
Motion and reply of plaintiff. Heard both sides.
MHCC01-011222-2019
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3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether Exparte order dated
19.08.2019 passed against the
defendant can be set aside ?
In the affirmative.
2. Whether delay in filing written
statement can be condoned ?
In the affirmative.
3. Whether written statement of defendant
can be taken on record ?
In the affirmative.
4. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 4.
4. In brief, it is contention of defendant that writ of summons
are served upon defendant on 14.06.2019. Thereafter, matter
adjourned on 19.08.2019. The deponent being Constituted Attorney/
Authorized Representative of defendant could not attend the Court
because of heavy traffic. Consequently, said exparte order is passed.
Defendant engaged advocate in the month of September, 2019 or
thereafter. After going through the plaint, it is revealed that certain
documents referred in L.E. & C. Suit No.51 of 2013 which was filed
against the plaintiff before the Small Causes Court, Mumbai. Therefore,
defendant's advocate instructed to bring those documents to prepare the
written statement. Inspite of search the said documents did not trace
out. In the first week of October, 2019 or thereafter defendant got said
documents. Defendant's advocate prepared the written statement
which is affirmed on 17.10.2019. Therefore, there is delay in filing
written statement.
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5. In brief, it is contention of the plaintiff that all the adverse
contentions raised are denied. There is delay in filing written
statement. There is no sufficient cause to condone the delay. Hence
Notice of Motion be dismissed.
7. Perused Perused Order 9 Rule 3 of the CPC. As per the said
Rule where neither party appears when the suit is called on for
hearing, the Court may make an order that the suit be dismissed.
8. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
9. According to the deponent he could not remain present
before the Court on 19.08.2019 because of heavy traffic. Considering
the reasons for non appearing before the Court on 19.08.2019, I am of
the opinion that the said Exparte order can be set aside.
10. 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
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defendant makes 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.
11. Writ of summons are served on 14.06.2019. The Notice of
Motion is filed on 18.10.2019. There is delay in filing written
statement. Written statement is not annexed with this Notice of Motion.
Considering the reasons mentioned in the affidavit in support of Notice
of Motion, I am of the opinion that to decide the suit on merit.
Defendant can be permitted to file written statement. Hence, I record
my findings to point Nos.1 to 3 in the affirmative and point No.4 the
Notice of Motion is allowed as per final order. Hence following order:
ORDER
Notice of Motion 4087/19 is hereby allowed as under.
1. Exparte Order dt.19/08/2019 passed against defendant is hereby
set aside.
2. Delay in filing written statement of defendant is hereby
condoned.
3. Defendant is permitted to file written statement on record till
next date.
4. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 24/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 24/01/2020
Transcribed on : 03/02/2020
Signed on : 04/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.02.2020 at 02.56 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 24.01.2020
Judgment/order signed by P.O. on 04.02.2020
Judgment/order uploaded on 13.02.2020
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