Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.432019 IN SUIT No.84621
MHCC010118412019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4320 OF 2019
IN
SUIT NO. 846 OF 2016
MCGM ] ...Applicants.
IN THE MATTER BETWEEN
Gopal D. Shetty and Another ] ...Plaintiffs.
Versus
MCGM & Others ]…Defendants.
Appearance:
Ld Advocate Gautam Kanchanpurkar for Plaintiff.
Adv. Mahesh Vishwkarma alongwith Advocate Chandramore for
defendant/MCGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 02/11/2022
ORAL ORDER
1) Defendants Nos. 1 to 3 have taken out present notice of
motion for condonation of delay in filing their written statement and for
taking their written statement on record.
2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply of plaintiff and record. Heard arguments
advanced by Ld Advocate for defendant Nos. 1 to 3 and Ld Advocate for
plaintiff.
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3) Ld Advocate for defendant No.1 to 3 argued that writ of
summons of the present suit was not served to them. Plaintiff had taken
out the notice of motion and defendant No.1 to 3 had already filed reply
to the same. While arguing the said notice of motion defendants had
raised the issue of jurisdiction of court and therefore, defendants were
under belief that there will be no necessity to file their written statement.
The delay was unintentional. On 19/7/19 defendants had filed their
written statement. As the defendants were seeking information from their
counsel and were required to take necessary instructions from their
authority, there is delay in filing written statement. Therefore, defendants
have demonstrated just and exceptional cause for condonation of delay.
4) On the other hand, Ld Advocate for plaintiff argued that
there is no just and exceptional cause for delay in filing their written
statement. Notice of motion alongwith the plaint was served to the
defendants. Defendants appeared in the matter in the year 2016 but failed
to file written statement. Once the party appears before court limitation to
file written statement starts from the date of appearance. The delay is
inordinate. The defendants have failed to demonstrate just and
exceptional cause in filing written statement. Moreover, on 19/7/19
without informing the court regarding delay in filing of written statement
defendants had tendered their written statement. The conduct of the
defendants was malafide. Therefore, defendants were negligent.
Therefore, Ld Advocate for plaintiff submitted that notice of motion be
dismissed.
4) From the matter on record it appears that on 19/7/19 when
the plaintiff was absent defendant No.1, 2 and 3 had tendered their
written statement and as per order in Writ Petition No.822/19 the order
of taking on record the written statement of defendant Nos. 1 to 3 was set
aside. The defendant Nos. 1 to 3 are public authority. Though the plaintiff
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has denied the cause of delay in filing written statement, plaintiff failed to
bring on record any material so as to disbelieve the cause stated by
defendant Nos. 1 to 3 in affidavit in support of notice of motion.
Considering the fact that writ of summons was not served and defendant
Nos. 1 to 3 had already filed reply to the notice of motion and the fact
that written statement of defendant Nos. 1 and 2 was ready and tendered
on 19/7/19, it appears that plaintiff has demonstrated just and
exceptional cause for condonation of delay in filing their written
statement. Moreover, considering the nature of the suit in order to give
fair opportunity to the defendant Nos. 1 to 3 to defend the suit by filing
their written statement in the interest of justice it will be appropriate to
condone the delay and to take their written statement on record.
5) Considering the matter on record and above discussion
present notice of motion deserves to be made absolute. Hence, court
proceeds to pass following order:
ORDER
1) Notice of Motion No. 4320/2019 is made absolute.
2) Written Statement of Defendant No. 1, 2 and 3 at Exh. 6 tendered on
19/07/2019 is taken on record.
3) Notice of Motion No. 4320/2019 is disposed off accordingly.
Date : 02/11/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :02/11/2022.
Typed on : 09/11/2022.
Checked on :09/11/2022.
Corrected & signed on :11/11/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/11/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
2/11/2022
JUDGMENT/ORDER signed by P.O.
on
11/11/2022
JUDGMENT/ORDER uploaded on 16/11/2022
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