Final Order 1

Order Details: Order
Pdf Text: Comm.Suit No.302/2019-nm ORAL ORDER 1
MHCC04-001445-2021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
BORIVALI DIVISION, DINDOSHI (BRANCH)
NOTICE OF MOTION NO.526 OF 2021
(CNR NO.MHCC040014452021)
IN
COMMERCIAL SUIT NO.302 OF 2019
(CNR NO.MHCC040086032019)
M/s.Krishna Digital Textiles LLP.
The Digital Textile Solution., & Ors.,
...Plaintiffs
V/s.
M/s.Knight Associates., ...Defendant
APPEEARANCE.
Adv. Priti Oza for plaintiffs.
Adv. P.S.Tiwari for Defendant.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI H. B. SIRSALKAR
(C.R. NO.03)
DATE : 04th March, 2021.
O R A L O R D E R
Defendant Firm / Applicant has taken out the present
Notice of Motion for condonation of delay of 78 days in filing of Written
-- 1 of 5 --
Comm.Suit No.302/2019-nm ORAL ORDER 2
Statement and for taking the written statement of Defendant Firm on
record.
2. Case of Defendant Firm / Applicant in brief is as under:
The Writ of Summons was served on Defendant Firm
/ applicant on 02/12/2019. Representative of Defendant Firm Akshay
Gupta is a senior citizen and suffering from diabetes. There was a
marriage in the family at his native in the State of Uttar Pradesh.
Therefore, he could not prepare and file written statement within
period of limitation, as he could not give instructions to his advocate
due to the health problems. The defendant desires to contest the suit
on merit and the delay is unintentional. Hence, defendant prayed to
condone the delay of 78 days and to take written statement on record.
3. The plaintiff No.1 is a partnership firm and plaintiff No.2
and 3 are its partners. The delay caused in filing Written statement is
wilful and malafide. The defendant has failed to show any sufficient
reason to condone the delay. The defendant desires to protract the
litigation and therefore, filed the written statement belatedly. The
delay is intentional and moreover, the copy of Notice of Motion has
been served on plaintiffs after one year. It shows the tendency of the
defendant to protract the matter. Hence, Plaintiffs have prayed to reject
the Notice of Motion with costs.
4. Heard Ld. Adv. P.S.Tiwari for defendant Firm and Ld.
Adv.Priti Oza for plaintiffs at length. After considering the submissions
of both the parties, following points arise for my determination against
which I record my findings for the reasons as following:
-- 2 of 5 --
Comm.Suit No.302/2019-nm ORAL ORDER 3
Sr.No. POINTS FINDINGS
1. “Whether the Defendant Firm
/applicant is entitled for the relief as
prayed in Notice of Motion” ?
In the affirmative.
2. What order ? As per the final order.
R E A S O N S
AS TO POINT NO.1.
5. It is not disputed that defendant Firm has been duly served
Writ of Summons on 02/12/2019. It is also not in dispute that
defendant firm has filed the Written Statement on 20/02/2020. It
appears that representative of defendant firm is a senior citizen. It is
his contention that there was a marriage at his native in the State of
Uttar Pradesh and also suffering from health problems. Therefore, he
could not contact his advocate and could not prepare the written
statement within prescribed period of 30 days. It appears that
defendant firm has filed the written statement after 49 days, after the
prescribed period of limitation of 30 days. The delay appears to be
unintentional and defendant firm has shown sufficient ground to
condone the said delay.
Hence, it appears that for proper adjudication of the case, it is necessary
to take written statement of defendant firm on record.
6. The court has discretion to condone the delay and to take
the written statement on record with cost, within period of 30 days to
120 days as per Commercial Court's Act, 2015. Therefore, considering
the fact and circumstance of the case, it would be proper to give a
chance to defendant firm to contest the matter on merit. However, it
would be proper to impose proportionate costs on defendant firm.
Therefore, I answer point No.1 in the affirmative.
-- 3 of 5 --
Comm.Suit No.302/2019-nm ORAL ORDER 4
7. In view of my affirmative findings as to point No.1, the
Notice of Motion deserves to be allowed and it would be proper to take
written statement of defendant firm on record. However, it would be
proper to impose heavy cost of Rs.3000/ to be paid to plaintiffs.
Hence, I proceed to pass following order.
ORDER
1) The prayer clause (a) of Notice of Motion No.526 of 2021 is
allowed.
2) The defendant society shall pay cost of Rs.3,000/ (Rupees Three
thousand only) to the plaintiffs within 14 days from today and
thereafter, the Written Statement of Defendant firm be taken on
record.
3) Notice of Motion No.526 of 2021 stands disposed off
accordingly.
( Order dictated and pronounced in open court)
( H. B. SIRSALKAR )
Adhoc Judge, City Civil Court,
Borivali Div. Dindoshi, Mumbai.
Date of dictation : 04/03/2021
Date of transcription by steno : 04/03/2021
Date of order checked and signed by HHJ : 04/03/2021
-- 4 of 5 --
Comm.Suit No.302/2019-nm ORAL ORDER 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE Ms.Madhura M. Palav
AND TIME : 04/03/2021 at 01.55 P.M. NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri H.B.Sirsalkar
(Court Room No.3)
Date of Pronouncement of Judgment/Order 04/03/2021
Judgment/Order signed by P.O. on 04/03/2021
Judgment/Order uploaded on 04/03/2021
-- 5 of 5 --