Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion
No. 4630 of 2018. 1
MHCC010126982019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4630 OF 2018.
IN
COUNTER CLAIM NO. 1715 of 2018.
IN
S.C.SUIT NO.1628 OF 2017.
M/s. Delux Polymers Pvt. Ltd. ….Applicant/
Plaintiff/
Orig. Defendant.
In the matter of
M/s. Delux Polymers Pvt. Ltd. … Plaintiff/
(Orig. Defendant.)
V/s.
Mr. Gaurav Hasmukh Gogri. ...Defendants/
(Orig. Plaintiff)
Appearance:
Adv. Batin h/f Adv G. S. Bhatt, Advocates for plaintiff in counter claim
& original defendant in suit.
Adv. Neha Bachim, Advocate for defendant in counter claim & original
plaintiff in suit.
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Order in Notice of Motion
No. 4630 of 2018. 2
CORAM : H. H. JUDGE
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 06th December, 2022.
ORDER
Defendant No.1 in the counter claim/plaintiff in the suit
has taken out the present Notice of Motion to set aside the order dated
16.04.2019 to proceed with counter claim without reply and to take on
record written statement of the defendant by condoning delay in filing
written statement. Henceforth the parties are referred as per their status
in the suit.
2. It is contended that the counter claim was not filed as the
part of the written statement. It was tendered lateron and defendant
took certain time to pay Court fees and to register the counter claim.
The advocate appearing for the plaintiff in the matter, due to oversight
failed to inform the advocate on record for the plaintiff about filing of
the written statement. Therefore, written statement could not be filed
and on 16.04.2019 the Court passed order to proceed with Counter
Claim without reply. Plaintiff came to know about the order on
04.11.2019, when its advocate informed it about the same. There is no
deliberate delay. The delay is due to bonafide mistake of the advocate.
No prejudice will be caused to the defendant if delay is condoned. On
these grounds, it prayed that the Notice of Motion be allowed.
3. Defendant contested the Notice of Motion by filing reply
and therein contended that there is no sufficient and reasonable cause
to condone the delay. The plaintiff was aware of the proceeding. The
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Order in Notice of Motion
No. 4630 of 2018. 3
plaintiff did not take due care and deliberately caused delay in filing
written statement. The contention regarding the miscommunication of
the defendant and their advocate is not tenable. Therefore, delay cannot
be condoned and the Notice of Motion is liable to be rejected.
4. Heard Ld. Advocates appearing for both the sides. Perused
the record. It reveals that the written statement of the defendant
(plaintiff in the counter claim) is taken on record, pursuant to the order
dated 12.09.2018 in Notice of Motion No.4031 of 2017. The counter
claim was tendered on 12.10.2018. However, it is taken on record at
Exh.6 on 30.11.2018, after payment of Court Fees and removal of office
objections. On 16.04.2019, as plaintiff failed to file written statement
to the counter claim, the impugned order came to be passed against the
plaintiff. The draft Notice of Motion is tendered on 13.11.2019.
5. The reason given by the plaintiff is that the advocate who
was attending the matter, failed to inform about the filing of the written
statement and therefore, the written statement could not be filed within
limitation. It is further claimed that plaintiff became aware of the
impugned order after the advocate informed them on 04.11.2019. The
advocate for defendant has objected that reasons given by the
defendants are not sufficient to explain the delay and therefore, delay
cannot be condoned.
6. The record shows that there is delay of more than ten
months in filing written statement to the Counter Claim. The reason
given for explaining the delay is the fault on the part of the advocate to
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Order in Notice of Motion
No. 4630 of 2018. 4
communicate the plaintiff regarding the filing of written statement.
Though the reason does not appear to be quite satisfactory, for decision
of the matter on merit, it would not be proper to deny the opportunity
to the plaintiff to putforth the defence to the counter claim merely on
the ground of delay. The delay in filing of the written statement can be
compensated in terms of costs. Therefore, the Notice of Motion can be
allowed subject to cost to be paid to the other side. Accordingly,
following order is passed:
ORDER
1. Notice of Motion No.4630 of 2019 is allowed and the delay in
filing Written Statement to the Counter Claim is condoned
subject to cost of Rs. 7000/ to be paid to the defendant/plaintiff
in counter claim.
2. Defendant/plaintiff in counter claim shall comply the above
order of cost within four weeks and shall tender the Written
Statement after compliance of the order.
3. Notice of Motion No. 4630 of 2019 is disposed off.
(SHRI S.B.PAWAR )
Judge
Date. 06.12.2022 City Civil Court, Gr. Mumbai
Declared on : 06.12.2022
Dictated on : 06.12.2022
Transcribed on : 08.12.2022
Transcript given for checking on : 17.12.2022
Signed on : 20.12.2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
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Order in Notice of Motion
No. 4630 of 2018. 5
20.12.2022 at 2.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 06.12.2022
Order signed by P.O. on 20.12.2022
order uploaded on 20.12.2022
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