Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4361 OF 2019
IN
S.C. SUIT NO.2345 OF 2018
1. Nirmal Lifestyle Limited & Ors. ] ...Applicants
In the matter between
Mr. Achin Ajay Kaul ] … Plaintiff
V/s.
1. Nirmal Lifestyle Limited & Ors. ] ... Defendants
Appearances :
Mr. Prasad Pathare, Ld. Adv. for plaintiff.
Mr. Manav Goyal, Ld. Adv. for defendant Nos.1 to 5.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 7th January, 2020
ORAL ORDER
1. Defendant Nos.1 to 5 filed this Notice of Motion for setting
aside exparte Order dated 24.1.2019 against the defendant Nos.2 to 5
and no written statement Order dated 09.04.2019 against the
defendant Nos.1 and permit defendant Nos.1 to 5 to file their written
statements.
MHCC01-011984-2019
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2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, reply of plaintiff. Heard both sides.
3. Following points arise for my determination. I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether the exparte orders passed
dated 24.01.2019 against the defendant
Nos.2 to 5 can be set aside?
In the affirmative.
2. Whether no W.S. order passed dated
09.04.2019 against defendant No.1 can
be set aside?
In the affirmative.
3. Whether all the defendants can be
permitted to file written statement 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 the defendants that writ of
summons are served upon defendant Nos.1 to 5 on 12.1.2019. This
Notice of Motion is filed on 21.11.2019. The concerned representatives
of defendant No.1 during the period from January, 2019 to April, 2019,
who was handling the mater has resigned / left without giving proper
notice to the defendants and without handing over the matter with
proper instructions. Therefore there is delay. Hence, delay be
condoned.
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5. The Learned Advocate appearing for defendant has relied
upon citation of the Hon'ble Apex court in the case of Kailash Vs.
Nankhu & Ors. but the said citation is not filed on record. The
Learned Counsel has submitted that in view of the said citation the
provisions under Order 8 Rule 1 of Civil Procedure Code is directory
and not mandatory. He has also submitted that if the said orders are
not set aside and grave prejudice will be caused to the defendants.
6. In brief, it is contention of the plaintiff that there is no
authorityd documents filed on record to show that defendant No.1 is
authorized to file this Notice of Motion and written statement on behalf
of the defendant No.1. All the other adverse contentions are denied.
No documents filed on record showing the name of the said employee
or employees who used to handle this matter. There is no authority
letter showing that defendant No.4 authorized defendant No.2 to file
this Notice of Motion and written statement. Written statement is not
annexed with this Notice of Motion. Therefore, this Notice of Motion be
dismissed.
7. Perused Roznama dated 24.01.2019. As per said Roznama
suit is proceeded Exparte against the defendant Nos.2, 3, 4 and 5.
8. Perused Roznama dated 09.04.2019. As per said Roznama
Suit is proceeded without written statement against defendant No.1. It
is observed in the said Roznama dated 09.04.2019 that, defendant No.1
appeared through Advocate Vishal Jadhav on 09.04.2019.
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9. Perused record. Defendants have right to defend
themselves. Perused Order 9 of the Code of Civil Procedure. According
to the defendant, writ of summons are served upon them on 12.1.2019.
Perused Order 8 Rule 1 of the Code of Civil Procedure. The defendant
has to file written statement within 30 days from the date of service of
writ of summons. In view of Rule 9 and 10 of the Code of Civil
Procedure time limit of 90 days prescribed by amendment of 2002
under Order 8 Rule 1 of the Code of Civil Procedure is not mandatory.
It is directory in nature. Therefore, considering the reasons mentioned
in the Notice of Motion, I am of the opinion that this Notice of Motion
cannot be dismissed on the grounds that there is no authorization to
defendant No.1 to file this Notice of Motion and written statement. I
am of the opinion that this Notice of Motion cannot be dismissed on the
ground that there is no authorization from defendant No.4 to authorize
defendant No.2 to file this Notice of Motion and written statement on
behalf of the defendant No.4. At the most defendant No.1 and
defendant No.4 can be directed to file authority letter to file written
statement.
10. Considering the reasons mentioned in the Notice of Motion
and nature of the suit and to decide the suit on merit the delay can be
condoned and the said two orders can be set aside. Defendants can be
permitted to defend the suit by filing their 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:
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ORDER
Notice of Motion 4361/19 is hereby allowed as under:
1. Delay in filing written statement of defendants is hereby
condoned.
2. Exparte order against defendant No.2, 3, 4, 5 dt.24/01/2019 is
hereby set aside.
3. No written statement order against defendant no.1
dt.09/04/2019 is hereby set aside.
4. All the defendants are permitted to file written statement till next
date.
5. Defendant no. 1 and 4 are hereby directed to file on record
authority till next date to whom they have authorized to file
written statement.
6. All the defendants are directed to file on record written statement
till next date.
7. cost in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 07/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 07/01/2020.
Transcribed on : 08/01/2020.
Signed on : 08/01/2020.
( 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”
14.01.2020 at 03.45 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 07.01.2020
Judgment/order signed by P.O. on 08.01.2020
Judgment/order uploaded on 14.01.2020
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