Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4488 OF 2019
IN
S.C. SUIT NO.403 OF 2019
M/s. Infinity Industries Pvt. Ltd. ] … Plaintiff
V/s.
M/s. Amita Art Printers Pvt. Ltd & Ors.] ... Defendants
Appearances :
Mr. Abhishek Kotulkar, Adv. for plaintiff.
Mr. Ram Laxmipalli, Ld. Adv. for defendant No.3.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 19th December, 2019
ORAL ORDER
1. Defendant No.3 has taken out this Notice of Motion to
condone the delay in filing written statement on record.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of the plaintiff and affidavit of service. Heard both sides.
3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
MHCC01-012283-2019
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2 NM 4488/19 in
SC Suit 403/19
Sr. No. POINTS FINDINGS
1. Whether delay in filing written
statement can be condoned?
In the affirmative.
2. Whether written statement of
defendant no.3 can be taken on record?
In the affirmative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of defendant No.3 that writ of
summons are served to him approximately on 27.7.2019. The
defendants failed to remember the date of service of the writ of
summons. Defendant approached his advocate, in the 3rd week of
August, 2019. His advocate filed vakalatnama on 21.8.2019. He could
not go to the office of advocate to instruct to prepare written statement
due to Ganesh Festival. His advocate was busy in the last week of
September, 2019. Lastly he went to the office of his advocate on
16.10.2019. He came to know that his advocate has left the office
because of some personal work. Therefore, lastly written statement is
prepared and he received draft written statement on 8.11.2019. Some
corrections are made in the draft written statement on 10.11.2019.
Therefore, there is some delay in filing written statement.
5. In brief, it is contention of the plaintiff that all the adverse
contentions raised in this Notice of Motion are denied. There is no
justifiable grounds to condone the delay. Hence, Notice of Motion be
dismissed.
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6. Perused the affidavit of service. It is mentioned therein
that advocate of plaintiffs received acknowledgement card addressed to
the defendant No.3. According to the defendant No.3 writ of summons
are served upon him about 27.7.2019. As per Order 8 Rule 1 of Code of
Civil Procedure defendant has to file written statement within 30 days
from the date of service of writ of summons. The said 30 days period
can be extended up to 90 days as per proviso of Order 8 Rule 1 of Code
of Civil Procedure. The proviso of Order 8 Rule 1 is directory in nature.
It is not mandatory. Grounds of delay is justifiable. There is delay, but
delay is not inordinate. Therefore, considering the reason mentioned in
the Notice of Motion delay can be condoned and written statement can
be taken on record. Hence, I record my findings to point Nos.1 and 2
in the affirmative and point No.3 the Notice of Motion is allowed as per
final order. Hence following order:
ORDER
Notice of Motion No.4488 of 2019 is allowed as under:
1. Delay in filing written statement of defendant No.3 is hereby
condoned.
2. Defendant No.3 is permitted to file written statement till next
date.
3. Cost in main cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 19/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 19/12/2019.
Transcribed on : 23/12/2019.
Signed on : 24/12/2019.
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4 NM 4488/19 in
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.01.2020 at 12.32 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 19.12.19
Judgment/order signed by P.O. on 24.12.19
Judgment/order uploaded on 01.01.2020
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