Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4092 OF 2019
IN
S.C.SUIT NO.3259 OF 2018
IN
COMMERCIAL SUIT NO.229 OF 2020
Watson Pharma Private Limited .... Applicants
(Original Defendant)
In the matter of
Kamlesh Lakhman Patel Gami ....Plaintiff
V/s
Watson Pharma Private Limited ....Defendant
APPEARANCE:-
Advocate Vivek Sharma for plaintiff.
None for defendant.
CORAM : H. H. AD-HOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO.32)
DATE : 27th February,2020
ORDER
Perused Notice of Motion alongwith affidavit and
written reply filed by plaintiff.
2. Defendant has taken out Notice of Motion for setting aside
order dated 27/8/2019 and also prayed for condonation of delay of
180 days in filing written statement. It is submitted by the
defendant that plaint was lodged against him in the month of
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December 2018 and served with the copy of writ of summons
without copy of plaint and exhibits on 4/1/2019. It is further
submitted by the defendant that thereafter, they have consulted
with their advocate and upon their instructions advocate address
letter to the advocate for plaintiff on 10/1/2019 asking him to
serve upon copy of the entire plaint with exhibit. It is further
submitted that in response of letter dated 10/1/2019 they have
received plaint with all the exhibits on 26/2/2019. Thereafter,
they have perused the plaint and documents they found that
certain statements are illegal and erroneous and therefore, they
have examined the document on the basis of which plaintiff has
made out their case. Thereafter, on 16/3/2019 their advocate
address letter to the advocate for plaintiff seeking inspection of all
the documents. As per their letter advocate for plaintiff fixing the
inspection on 9/4/2019. Thereafter, they have to check their
documents and for the safer side consumed a considerable amount
of time. It is further submitted by the defendant that the Directors
of defendants are required to travel abroad due to work and
personal reasons and therefore, there has been an inadvertent delay
in seeking instructions for formulating a defense. It is further
submitted by the defendant that there is delay in filing written
statement however, it was not intentional if the order dated
27/8/2019 is not set aside then the defendant suffer irreparable
loss. Lastly, it is submitted that the order dated 27/8/2019 be set
aside and defendant may kindly be permitted to file written
statement on record.
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3. Plaintiff opposed Notice of Motion by filing written reply. It
is contended by the plaintiff that the defendant has not given
proper explanation for delay in filing written statement and
therefore, order of no written statement has been given.
4. I have heard Ld.Counsel for plaintiff. Advocate for defendant
is absent. I have perused record and proceeding in old S.C.Suit
No.3259 of 2018 and New Commercial Suit No.229 of 2020. As
per the record the writ of summons was served to the defendant
on 4/1/2019 as admitted by the defendant in the Notice of Motion.
From 4/1/2019 to till 27/8/2019 defendant has failed to file written
statement and therefore, detailed order was passed and suit was
proceeded without written statement of defendant. In order dated
27/8/2019 it was observed that the period of filing written
statement was over and therefore, the suit was proceeded without
written statement against defendant. Thereafter, the suit was
converted into the Commercial Suit No.229 of 2020. As per the
Commercial Court Act amendment under O.VIII R.1 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 day, as may be specified by the Court, for resons to
be recorded in writing and on payment of such costs as 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 the written statement and the Court shall not allow the written
statement to be taken on record. As admitted by defendant in the
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Notice of Motion that the delay has been caused for 180 days
then mandate under amended O.VIII R.1 of CPC in Commercial
Court Act was cross by the defendant. Then the amended O.VIII
R.1 of CPC in Commercial Court Act has not given power to the
Court to allow the defendant to file written statement on record
after 120 days. Therefore, I found that the reasons are not
satisfactoy and under such circumstances, there is no any other
alternative in the hands of Court except to pass following order.
ORDER
Notice of Motion No.4092 of 2019 is dismissed with costs.
Date:-27/02/2020 (Milind A.Bhosale)
Ad-Hoc Judge
City Civil & Sessions Court,
Gr.Bombay
Direct Dictated on :- 27/02/2020
H.H.J.Signed on :-27/02/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/02/2020 at 4.35 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
27/02/2020
JUDGMENT/ORDER signed by P.O. on 27/02/2020
JUDGMENT/ORDER uploaded on 27/02/2020
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