Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4546/19 (Suit 185/16)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.4546/2019
(CNR No.MHCC010124102019)
IN
S.C. SUIT NO.185/2016
M/s. Desai Auto Service, Sion. ..Plaintiff
V/s.
1. M/s. Bharat Petroleum Corporation
2. Sundeep Ramesh Desai. ..Defendants
Appearance:
Adv. Mr. K.P. Tiwari for plaintiff.
Adv. Mr. A.K. Singh for defendant no.2.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 18.1.2020.
ORAL ORDER
1. This Notice of Motion is taken out by plaintiff praying for
condonation of delay in taking out notice of motion and for setting
aside order dated 14.11.2019. The notice of motion is supported by an
affidavit of Mr. Harinder Singh Iqbal Singh, proprietor of the plaintiff.
2. The notice of motion is opposed by defendant no.2 by
submitting affidavit in reply sworn by Mr.Sundeep Ramesh Desai.
3. I have heard oral submissions of Ld. Adv. Mr. Tiwari for the
plaintiff and Ld. Adv. Mr. A.K Singh for the defendant no.2.
4. It is submitted on behalf of the plaintiff that, in the present
suit, a Chamber Summon No.312/2018 was taken out by defendant
no.2 to join him as defendant in the suit and vide order dated
27.4.2018, it was allowed. Similar application was moved by defendant
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no.2 in A.O. No.398/2016 praying for adding him as party/ respondent
in the appeal. As per order dated, 31.7.2017, the defendant no.2 was
directed to be joined in the appeal. In view of the above said order, the
chamber summons was allowed by this court and it was directed that,
after necessary amendment is carried out within two weeks, defendant
no.2 shall file WS in four weeks.
5. Ld. Counsel for the plaintiff further submitted that, above
said period of 30 days had already expired. Therefore, when the matter
had come up before Incharge Court (C.R. No.2) on 14.8.2019, it had
passed an order directing the defendant no.2 to take appropriate
proceeding when defendant no.2 had requested to take WS on record.
The matter was adjourned to 19.8.2019. On the above background of
the facts, on 14.11.2019, Ld. Counsel for the defendant no.2 filed an
application seeking permission to file WS on record without serving
copy of the same on the Counsel for the plaintiff and this court granted
permission to file WS vide order dated 14.11.2019. This order is not
legal and proper as defendant no.2 has moved the application without
taking appropriate proceeding as directed by the court vide order dated
14.8.2019. The WS filed by the defendant cannot be taken on record, as
a matter of course, as per various decisions of higher Courts. The order
passed by this court on 14.11.2019 is in contradiction to the order
passed by Incharge Court dated 14.8.2019. Therefore, it is necessary to
set aside the order dated 14.11.2019 granting permission to defendant
no.2 to file WS on record and notice of motion filed by the plaintiff
deserves to be allowed with compensatory costs.
6. On the contrary, Ld. Counsel for the defendant no.2 has
strongly opposed the Motion and relied on the affidavit in reply and
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submitted that, the defendant no.2 has denied all the adverse
allegations in the affidavit. It is submitted that, the plaintiff has
suppressed material facts from the court and the fact that the plaintiff
had delayed the matter while serving amended copy of the plaint on the
defendant no.2. It is a matter of record. Therefore, now, defendant
no.2 cannot be blamed by the plaintiff. Ld. Counsel for the defendant
no.2 submitted that, after order was passed by the court on 27.4.2018,
the plaintiff had not served the copy of amended plaint till 24.8.2018
and thereafter got the time extended for carrying out the amendment
and the matter was adjourned to 25.10.2018. Thereafter, it was
submitted by the plaintiff that, the amendment was carried out on
4.9.2018, but copy of the amended plaint could not be served on the
defendant no.2 and it was finally served on the defendant no.2 on
19.3.2019. Defendant no.2 has never waived service of writ of
summons in the present case. Therefore, the defendant no.2 cannot be
treated to be served with deemed service of writ of summons.
7. Ld Counsel for the defendant no.2 further submitted that,
in the proceedings before Hon'ble High Court in A.O No.398/16, while
disposing of the appeal, matter was remanded back for fresh hearing on
Notice of Motion No.462/16 along with C.A. No. 521/16. After remand
of the matter, defendant no.2 at the earliest possible time, filed the WS
on record before Incharge Court (C.R.02) on 14.8.2019 and the court
was kind enough to give liberty to the defendant no.2 to take
appropriate proceeding for filing WS on record. Thereafter, WS was
filed on record on 14.11.2019 on behalf of defendant no.2 on the basis
of submission made before the court and it was argued that there was
no delay on the part of defendant no.2 in filing WS. Thus, Ld. Counsel
for the defendant no.2 has put entire blame on the plaintiff in causing
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the delay in the proceedings by not serving amended copy of the plaint,
as directed by the court. Writ of summons was never served on the
defendant no.2 by the plaintiff till 19.3.2019. Therefore, it was
submitted that, as per provisions of CPC, the period of limitation of 30
days for filing the WS has never commenced. Under the above
circumstances, the notice of motion taken out by the plaintiff is devoid
of any merit and it is liable to be dismissed.
8. In reply submission, Ld. Counsel for the plaintiff has placed
reliance on the following authorities :
1 Shri Victor Albuquerque V/s Saraswat Co
operative Bank Ltd. and others (1998 AIR (Bom)
346)
2 Esha Bhattacharjee V/s. Managing Committee of
Reghunathpur Nafar Academy and Ors. (2013
AIR (SCW)6158 (S.C)
3 Mr. Joao Fernandes V/s. Mr. Francisco Xavier
Jacques & Anr. (Writ Petition No.285 of 2013),
decided on 20th June, 2013 (High Court of
Bombay at Goa)
4 Mr. Bolu Bandodkar V/s. Diana Zita Agnela
D'Souza e Martyres and Ors. (Writ Petition
No.164 of 2015), decided on 3.9.2015 (High
Court of Bombay at Goa)
5 Mr. Tukaram Pandurang Sawant & Ors. V/s.
Parvati Venkatesh Sawant & Ors. (Writ Petition
No.656 of 2017), decided on 22nd November
2017 (High Court of Bombay at Goa).
6 SCG Contracts India Pvt. Ltd. V/s. K.S.
Chamankar Infrastructure Pvt. Ltd. and Ors.
(Civil Appeal No.1638/2019) (arising out of SLP
(C) No. 103/2019), decided on 12.2.2019 (S.C.).
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9. I have gone through the above authorities and find that, in
the authority as Sr. No.1, Hon'ble Bombay High Court has considered
the provisions of Sec.5 of Limitation Act, regarding condonation of
delay for showing sufficient cause. It was held that, without taking
proper action for condonation of delay, merely justifying the delay
beyond period of limitation would not automatically entitle the party to
get the delay condoned.
In the second authority, Hon'ble Apex Court has held that,
the law of limitation has a fixed time limit/ lifespan for availing legal
remedy. It is based on public policy. Rules of limitation are not meant
to destroy the rights of the parties. But it is meant for availing remedies
promptly by the parties and not to indulge in dilatory tactics.
10. In the authorities at Sr. Nos.3 to 5, similar views have been
taken by Hon'ble Bombay High Court in these cases and held that,
sufficient cause is required to be shown by the party justifying the delay
for taking out legal action and the court has to be satisfied with
explanation given by the party.
In the sixth and last authority, Hon'ble Apex Court while
allowing an appeal has held that as per Order 8 Rule 1 of the CPC, WS
is to be filed within 30 days. However, there is grace period of 90 days
which can be granted by the court for the reasons to be recorded in
writing and subject to payment of costs. After expiry of 120 days,
defendant forfeits his right to file WS and the court shall not allow WS
to be taken on record thereafter. As per Order 8 Rule 10 of CPC, the
court has no further power to extend the time beyond period of 120
days.
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11. Relying on the above authorities, Ld Counsel for the
plaintiff submitted that, there is no substance in the submissions made
on behalf of the defendant no.2 and the notice of motion taken out by
the plaintiff deserves to be allowed.
12. On the other hand, Ld. Counsel for the defendant no.2
submitted that the ratio of the above said authorities of Hon'ble Bombay
High Court and Hon'ble Apex Court is not applicable to the facts of
present case because writ of summons was never served on the
defendant no.2 and the period of 30 days for filing WS never
commenced. Hence the above said decisions are not of any help to the
plaintiff.
13. After considering the submissions made by Ld Counsels for
both sides and after careful perusal of the affidavit supporting the
Motion and the reply affidavit and record of the case, it can be seen
that, the defendant no.2 had taken out Chamber Summons No. 312/18
for joining him as defendant in the suit and vide order dated
27.04.2018, it was allowed. Similarly, an application was moved by the
defendant no.2 in A.O.No.398/16 praying for adding him as party/
respondent in the Appeal and as per order dated 31.07.2017, defendant
no.2 was allowed as a party respondent in the appeal and in view of
above said order, he has been allowed to be joined as defendant no.2 in
the present suit by allowing the chamber summons by this Court.
14. It is also clear from the record that, the defendant no.2 was
not made party defendant in the suit when Notice of Motion No.462/16
was initially dismissed by this court vide order dated 31.03.2016. Since
said notice of motion is still pending before the court after remand from
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the Hon'ble High Court. It appears that, therefore the writ of summons
was not issued/ taken out by the plaintiff against defendant no.2. As
such, technically speaking, the statutory period of 30 days for filing WS
cannot be said to have commenced, as contended by Ld. Counsel for the
defendant no.2. However, since the defendant no.2 has appeared before
the court after he has been joined as defendant no.2 in the suit vide
order dated 27.04.2018, substantial period has lapsed and from the
date of appearance of defendant no.2 before this court till today the
statutory period of 30 and subsequent period of 90 days at the
discretion of the court is already over. Therefore, entire period of 120
days has lapsed as defendant no.2 has not filed WS on record nor
followed the procedure for condonation of delay in filing the WS on
record.
15. I also find that, considering the fact that defendant no.2
has been served with copy of plaint along with notice of motion on his
appearance before the court, there is implied waiver of writ of summon
on the part of defendant no.2 and therefore, it will have to be taken
that there has been delay on the part of defendant no.2 in filing the WS.
Therefore, it is incumbent on the defendant no.2 to follow the correct
procedure by taking appropriate steps for seeking permission from the
court for filing WS by condoning the delay. This was the procedure
pointed out to defendant no.2 by Ld. Incharge Judge (C.R.02) on
14.8.2019. As per Roznama dated 19.3.2019, it is seen that defendant
no.2 was directed to file WS within 30 days by moving a Praecipi and
that 30 days period has already expired. Therefore, defendant no.2 was
given liberty to take appropriate proceeding with request to take WS on
record.
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16. On the above background of the facts, it is apparent that,
the order of this court dated 14.11.2019, taking WS of defendant no.2
on record, cannot be said to be legal and proper. It appears that, all the
above mentioned facts, discussed above, were not brought to the notice
of the court at the time of submitting WS on record by defendant no.2
and therefore, said order came to be passed permitting the defendant
no.2 to file WS on record without following procedure for condonation
of delay.
17. Hence, I find substance in the submission made by Ld
Counsel for the plaintiff that, the said order passed by this court dated
14.11.2019 needs to be set aside with a liberty to defendant no.2 to
follow appropriate procedure by taking necessary steps for seeking
condonation of delay in filing the WS on record. In view of above
observation, I proceed to pass following order:
ORDER
1. Notice of Motion No.4546/2019 is hereby allowed and made
absolute.
2. Order passed by this court dated 14.11.2019 taking WS filed
by defendant no. 2 on record is hereby set aside and Exhibit
given to the WS shall stands deexhibited (as if it is not on
record).
3. The defendant no. 2 shall be at liberty to take appropriate
proceedings for condonation of delay. If the delay is
condoned, the WS filed by defendant no. 2, can be taken on
record.
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Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 18.1.2020 Gr. Bombay (C.R. 03)
Dictated on : 14.1.2020 (partly), 16.1.2020 (partly) and 18.1.2020
Transcribed on : 14.1.2020, 16.1.2020 and 18.1.2020
Draft given to HHJ on 18.1.2020.
Signed by HHJ on : 20.1.2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 23.1.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 18.1.2020
Judgment/ order signed by P.O on 20.1.2020
Judgment/ order uploaded on 23.1.2020
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