Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4312 OF 2019
IN
S.C.SUIT NO.1997 OF 2018
Swati Spentose Pvt.Ltd. .... Plaintiff
V/s
Sukhjendra Kumar Arora & Ors. .....Defendants
APPEARANCE:
Advocate Darshan Mehta for plaintiff.
Advocate Gaurangi Patil for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 22nd November, 2019
ORDER
Perused Notice of Motion alongwith affidavit and say filed by
plaintiff.
2. Defendant No. 2 taken out Notice of Motion for condonation of
delay for filling written statement. It is submitted that plaintiff has filed
suit against defendant nos.1 and 2 for recovery of amount and
defendant no.2 served on 20.08.2018. It is further submitted that at the
time of cause of action he was employed with the company and used
work under the instruction of defendant no.1. After service of writ of
summons he approached to the defendant no.1 and informed him. As
per information he will ready to assist him to approach advocate for the
purpose of handling the matter and advising in the same. It is further
submitted that at that time defendant no.1 was staying in the United
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State of America and was not present in Mumbai. It is further submitted
that when defendant no.1 arrived in India he approach to advise
alongwith defendant no.1 but defendant no.1 asked to look for another
advocate and left for America. Thereafter, he was indisposed due to
family commitment he was not avail to follow of the advocate. It is
further submitted that he is the sole bread earner of his family and
entire family dependent on him he has to be lot of traveling to his
occupation and therefore, he could not tender the written statement
and delay has been caused of 337 days. It is further submitted that such
delay neither willful nor intentional but bonafied. He pointed out that
he is having good case on merit and if delay is not condoned then he
suffered irreparable loss. Lastly, it is prayed that delay may be
condoned and he may be permitted to tender written statement on
record.
3. Plaintiff has filed written say and denied entire allegation made
against him in the Notice of Motion. It is contended by the plaintiff that
defendant no.2 has tendered Notice of Motion on belated stage and also
totally misconceive. It is further contended by the plaintiff that the
defendant no.2 and defendant no.1 are acting in collusion with each
other. It is further contended by the plaintiff that para no.7 in the
Notice of Motion there is blank of days and defendant no.2 is not aware
that how many days delay has been caused in filling written statement.
It is further contended that the defendant no.2 has himself admitted
that the writ of summons was received by him on 20.08.2018 and he
was waiting for defendant no.1. Lastly, it is prayed no cogent ground is
made for condonation of delay and it may be dismissed with costs.
4. I have heard Ld. Counsel for defendant no.2. It is submitted by
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the counsel for defendant no.2 that defendant no.2 was employed with
defendant no.1 and he used to work under the instruction of defendant
no.1. She further submitted that after receiving writ of summons
defendant no.2 immediately approach to the defendant no.1 . However,
defendant no.1 was staying United state of America and was not present
in India. She further submitted that defendant no.2 is a poor person
and only bread earner of his family he is not a responsible for the act of
defendant no.1. He is good case on merit. However, he failed to tender
written statement within stipulated time. She further submitted that as
per the observation of Hon'ble Apex Court while dealing with the
application for delay court should take liberal view. She rely on ruling
reported in AIR 1987 (Supreme Court Cases 1353) and submitted that
as per the observation of Hon'ble Supreme Court in Collector, Land
Acquisition Anantnag & Anr v. Mst. Katiji & Ors. as per the ratio laid
down by the Hon'ble Supreme Court cited supra court should be
adopted liberal approach and defendant may kindly be permitted to
taken part in the proceeding by condonation of delay and permit him to
tender his written statement on record.
5. Per contra Ld. Counsel for plaintiff submitted that the defendant
nos.1 and 2 acting in collusion with each other. It is further pointed out
by the Ld Counsel for plaintiff that the defendant no.2 is not aware that
how many days delay has been caused for filling written statement. He
drew my attention towards the record and submitted that defendant
no.2 served writ of summons on 20.08.2018 to which the defendant
no.2 admitted this fact as it is in the Notice of Motion. Ld. Counsel for
plaintiff also drew my attention towards O.VIII R.1 of C.P.C. and argued
that the defendant has to tender written statement within 30 days and
if it is not time can be extended for the period of 90 days. If the
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defendant shows special and extraordinary reason but in the present
Notice of Motion the defendant no.2 failed to show special and extra
ordinary reason for condonation of delay. He submitted that without
satisfactory reason as well as delay has been properly explained by
defendant no.2 Court does not have power to condone the delay as per
O.VIII R.1 of C.P.C. He also relied on ruling of Hon'ble Supreme Court,
it is submitted by the counsel for plaintiff that Hon'ble Supreme Court
in Atcom Techonoligies Limited v/s Y.A. Chunawala and Co. & Ors.
(Civil Appeal No.(S).42664267 of 2018) (date of Judgment May,7
2018) held that the time can be extended in exceptionally hard cases.
However, defendant no.2 failed to show the reason in which delay has
been caused for filling written statement within stipulated time. He
pointed out that the reason mentioned in the Notice of Motion is not at
all came into the terms of exceptionally hard. Lastly, it is submitted by
the Counsel for the plaintiff that the Notice of Motion does not have any
merit and it may kindly be dismissed with costs.
6. After hearing both the parties I drew my attention towards
record. As per the record the plaintiff has filed suit against defendant
nos.1 to 3 for damages under the provision of Specific Relief Act.
Record also shows that the defendant no.2 duly served by way of writ of
summons on 20.08.2018 and appeared in person before the court on
27.03.2019. However, as per the contention mentioned by the
defendant no.1 in the Notice of Motion he failed to file written
statement within stipulated time. As per O.VIII R.1 of C.P.C. admittedly
it was obligatory on the part of defendant no.2 to file written statement
within 30 days provided that if defendant no.2 is not in position to
tender written statement within 30 days then time can be extended for
the period of 90 days if defendant no.2 explained extraordinary/special
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reasons. In the present suit the defendant no.2 rightly served by the
plaintiff as per service he appeared before court but failed to tender
written statement within stipulated time. Admittedly, the reason stated
by defendant no.2 in the Notice of Motion is at all not came into the
category of special/extraordinary/exceptional. Defendant no.2 only
mentioned in Notice of Motion that he approached to defendant no.1
and defendant no.1 is not available in India and later on he suggest to
approach another advocate this reason is prima facie is not satisfactory.
It is true to say that as per the direction given by Hon'ble Apex Court in
the case of Collector, Land Acquisition, Anantnag and another v.
Mst. Katiji, AIR 1987 Supreme Court cases 1353, it is held by the
Hon'ble Supreme Court that Court should adopt liberal approach while
condone the delay for filling written statement. However, in the present
Notice of Motion the reason shown by defendant no.2 in the Notice of
Motion is not at all satisfactory for adopting liberal approach for
condonation of delay. Moreover, Hon'ble Supreme Court in Atcom
Techonologies Limited v/s Y.A. Chunawala and Co. & Ors.(Civil
Appeal No.(S).42664267 of 2018) (date of Judgment May,7 2018)
the Hon'ble Supreme Court in the above cited ruling held that onus
upon the defendant is of higher degree to plead and satisfactorily
demonstrate valid reason for not filling the written statement within 30
days. In the present Notice of Motion the defendant no.2 failed to
discharge onus of higher degree to plead and satisfactorily demonstrate
valid reason for not filling the written statement within 30 days. Under
such circumstances O.VIII R.1 of CPC does not permit this court to
condone delay without any special/extraordinary reason in the above
said reason. I came to conclusion that Notice of Motion does not have
any merit. Hence, I proceed to pass following order
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ORDER
Notice of Motion No. 4312/2019 is dismissed with costs.
Date:22/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 22/11/2019
Typed on :22/11/2019
H.H.J.Signed on :22/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22.11.2019 at 5.30 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
22.11.2019
JUDGMENT/ORDER signed by P.O. on 22.11.2019
JUDGMENT/ORDER uploaded on 22.11.2019
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