The Bombay High Court allowed a writ petition filed against the judgment and order dated 18.06.2008 passed by the City Civil Court, Mumbai, whereby it had refused to condone the delay of 31 months and 16 days in filing the Written Statement.
A single judge bench of this Court comprising Hon’ble Justice Rajesh S Patil held that the Petitioner should not be deprived of an opportunity to contest the claim on merits.
Brief Facts:
A suit was filed by a borrower. The Plaintiff, after filing the suit, preferred an Interim Application in the form of a Notice of Motion. Writ of Summons was served on Defendant No.1 on 23.12.2004 and Defendant No.2 on 28.12.2004. The defendants accepted to file their written statement by 17.01.2005.
However, the written statement could not be tendered in the court, as the Notice of Motion filed by the Plaintiff was pending for hearing and disposal and the practice followed in City Civil Court, Bombay is that only when the matter is on board, the documents are tendered across the bar. The Notice of Motion was ultimately disposed of on 02.11.2007. The Petitioners (Original Defendants), then, made effort to tender the written statement in the court. However, the court refused to accept the written statement as there was an objection by the Plaintiffs, since the time limit according to the Plaintiff for filing the written statement was 30 days, and the same had expired long back. Thereafter, the Defendants/Petitioners filed a Notice of Motion to condone the delay in tendering the written statement which was rejected by the Court. Hence, the present petition was filed by the Petitioner.
Contentions of the Petitioner:
The Learned Counsel for Petitioner argued that the City Civil Court, Bombay, without considering the correct position of law, rejected the Application for condonation of delay. Hence, the impugned order should be quashed and set aside, in the interest of justice.
Observations of the Court
The Court observed that there is no restriction in Order 8, Rule 10 that after the expiry of ninety days, further time cannot be granted. Time can be extended in exceptional cases. The reliance was placed on the Zolba vs. Keshao and Others reported in (2008) 11 SCC page 769 in which the facts were almost identical to the present matter. In that case, Defendant preferred a Miscellaneous Appeal before the District Court, due to which the Written Statement couldn’t be filed in time. The Supreme Court held that it was an exceptional case constituting sufficient cause for condoning the delay in filing the Written Statement.
In view of this Court, the present case is an ordinary suit and not a commercial suit. It is a matter of fact that written statements were affirmed on 17.01.2005, which can be seen from the photocopy of the affirmed written statement which is part of the document annexed to the Writ Petition. Therefore, no ulterior motive was found for not filing the written statement in the Registry.
The decision of the Court:
The Bombay High Court allowed the petition and held that the Written Statement should have been taken on record and delay should have been condoned.
Case Title: Shriram Transport Finance Co. Ltd. & Anr. vs State of Maharashtra & Anr.
Coram: Hon’ble Justice Rajesh S Patil
Case no.: WRIT PETITION NO. 6989 OF 2008
Advocate for the Petitioner: Mr. S.P. Bharti
Advocate for the Respondent No.1: Mr. Sachin H. Kankal
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