Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4474/2019 L.C. Suit No. 331/2013
CNR No. MHCC01-012248-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4474 OF 2019
IN
L.C. SUIT NO. 331 OF 2013
M/s. Zee Entertainment Enterprises Ltd. )
A Company incorporated under the )
provisions of Companies Act having its )
registered office situated at Continental )
Building, 135 Dr. Annie Besant Road, )
Worli, Mumbai – 400 018 )...Plaintiff
Vs.
The Municipal Corporation of Gr. Mumbai )
A body incorporated under the provisions )
of B.M.C. Act having its office at Mahapalika)
Bhavan, Mahapalika Marg, )
Mumbai – 400 001 )
Through the Asstt. Municipal Commissioner)
G/South Ward, N.M. Joshi Marg, Lower )
Parel, Mumbai – 400 013. )...Defendant
APPEARANCE:-
Ld. Adv. Mrs. Narvekar for the plaintiff.
Ld. Adv. Mr. Kumawat for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 28th FEBRUARY, 2020.
O R D E R
This Notice of Motion No.4474/2019 is taken out by
defendant praying to set aside & permit him to file its written
statement.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant that defendant being statutory and public body
and a vast organization, due to heavy workload this defendant failed to
file the written statement in time. Defendant was required to take
instructions from different departments and it was not possible to get
the draft of written statement approved within stipulated time.
Defendant has very good case and unless this defendant files the
written statement, the correct facts and legal position will not be
pointed out to the court. Defendant therefore prayed to allow its notice
of motion.
3. Plaintiff has resisted the aforesaid notice of motion by
filing his reply. According to plaintiff, defendant failed to make out the
prima-facie case for condonation of delay as prayed for in the notice of
motion. Defendant apparently failed to explain the reasons on merits,
for the delay caused in filing the present notice of motion. Defendants
have not given any proper and specific reasons, for the delay caused in
filing the present notice of motion. Writ of summons of this case as per
court record, is duly served upon the defendant on 08.02.2013.
Defendant was under mandatory obligation to explain day to day delay
caused in filing the notice of motion. For aforesaid reasons, he prayed
to dismiss the notice of motion.
4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
pleadings in the notice of motion and reply filed on record.
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5. I have given anxious consideration to arguments of both
the learned advocates. At the outset, it is not in dispute that in order to
condone delay, defendants have to make out sufficient cause. What is
sufficient cause has been explained in the citation of
Balwant Singh
(Dead) V/s. Jagdish Singh and others reported in (2010) 8 SCC 685.
Liberal construction of the expression “sufficient cause” is intended to
advance substantial justice which itself presupposes no negligence or
inaction on the part of the applicant, to whom want of bonafides is
imputable. The expression “sufficient cause” implies the presence of
legal and adequate reasons. The word “sufficient” means adequate
enough, as much as may be necessary to answer the purpose intended.
It embraces no more than that which provides a plentitude which,
when done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be such as it
would persuade the court, in exercise of its judicial discretion, to treat
the delay as an excusable one. The party should show that besides
acting bonafide, it had taken all possible steps within its power and
control and had approached the court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due case and
attention.
6. In light of aforesaid legal pronouncement, it needs to be
seen as to whether defendant has made out sufficient cause for
condoning the delay or whether plaintiff has succeeded in bringing on
record inaction, negligence, malafides on part of defendant, to reject
the notice of motion of defendant.
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7. Defendant has affirmed on oath the reasons for which
delay is caused in filing written statement. According to him, defendant
being statutory and public body and a vast organization, due to heavy
workload this defendant failed to file the written statement in time.
Defendant was required to take instructions from different departments
and it was not possible to get the draft of written statement approved
within stipulated time. For aforesaid reasons, there is delay which is
unintentional and not deliberate.
8. Defendant has made out reasons in their notice of motion
as to why it could not file written statement within time. As no doubt is
created in aforesaid reasons, it can be safely said that defendant has
made out sufficient cause to condone the delay. No inaction, negligence
or malafides are pointed out by plaintiff. Therefore, Defendant has
made out sufficient cause can be concluded.
9. The observations in the cited case of
R.N. Jadi & Brothers
V/s. Subhashchandra reported in (2007) 6 SCC 420 further come to aid
of defendants in which it is observed that, Procedural law is handmaid
of justice. In an adversarial system, no party should ordinarily be
denied the opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific language of the
statute, the provisions of CPC or any other procedural enactment ought
not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. Therefore, the
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arguments of learned advocate for defendant needs to be countenanced
as against the arguments of learned advocate for plaintiff.
10. The defendant corporation is served with writ of summons
on 08.02.2013. Therefore, there is delay of more than 6 years in
moving this notice of motion. Though there is nothing on record that
the delay caused is malafide, the delay is not short delay. Though
defendant corporation is statutory body, law is equal for all. The
mandate of Order 8 Rule 1 of Code of Civil Procedure is equally
applicable to defendant corporation. Applying the principles laid down
in the aforesaid citations and Order 8 Rule 1 of CPC being directory in
nature, suit needs to be decided on merits by giving opportunity to
defendant. Therefore, notice of motion of defendant deserves to be
allowed on costs. Therefore, I proceed to pass following order.
ORDER
1. The Notice of Motion No.4474/2019 is hereby allowed subject
to costs of Rs.1,200/- (Rs. One Thousand Two Hundred Only) to
be paid by defendant/MCGM to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
delay caused in filing written statement shall stand condoned
and the written statement tendered on record by
defendant/MCGM shall be taken on record.
3. The Notice of Motion No.4474/2019 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :28.02.2020. City Civil Court, Gr. Bombay
Dictated on : 28.02.2020.
Typed on : 28.02.2020.
Signed on : 11.03.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.03.2020, 11.34 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
28.02.2020
JUDGMENT/ORDER signed by P.O.
on
11.03.2020
JUDGMENT/ORDER uploaded on 14.03.2020
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