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MHCC010119252024 1 2024-10-09

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14 views6 pages

MHCC010119252024 1 2024-10-09

Uploaded by

kevinandrews4444
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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N. M. No.2273/2024 -: 1 :- in C. S. No.

915/2024

MHCC010119252024

IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY

ORDER IN NOTICE OF MOTION NO.2273/2024


IN
COMMERCIAL SUIT NO. 915/2024

M/s. Amit Ship Management Pvt. Ltd. … Plaintiff.

V/s.

National Insurance Company Limited. … Defendant.

CORAM: HIS HONOUR JUDGE


SHRI. A. S. KAZI
(COURT ROOM NO.14)
DATE : 09.10.2024

-: Appearances: -

Ld. Adv. Omkar Dhoble for the plaintiff.


Ld. Adv. Aarti Shah for the defendant through V.C.

ORAL ORDER

Heard the both Ld. Advocate for the plaintiff at length.


Perused the record.

2) In view of the above, the following points arise for


determination before me and I record my findings thereon for the
reasons enumerated hereinafter;
N. M. No.2273/2024 -: 2 :- in C. S. No.915/2024

Sr. No. Points Findings

1. Whether the prayer for condoning


delay if any, caused in filling written In the Negative.
statement deserves to be granted?

2. What Order? As per final order

REASONS
As to point no.1 & 2:-
3) The defendant moved above notice of motion with a prayer to
condone the delay in filling the written statement and for taking the
same on record. It is submitted that, the delay in filling the written
statement is not intentional and deliberate and occurred because the
writ of summons at the Kolkatta address of the defendant by letter
dated 13.08.2019 mentioning that the suit was going to be listed before
the Court 19.08.2019. So the defendant instructed its Mumbai office to
attend the said date of hearing. The defendant officer attended the
court and requested for time to engage advocate. Thereafter, the
defendant engaged the advocates and solicitors. Thereafter, the
defendant’s advocate copy of the pleading and affidavits filed by the
plaintiff from its advocate on 25/26.08.20219. Thereafter, the
defendant collected all the record regarding the claim of the plaintiff
suit and gave instruct to draft written statement. The written statement
was affirmed on 17.09.2019 and a copy of also the written statement
was served to the plaintiff’s advocate on the same date. However, the
registry accepted the same because there was little delay. The written
statement was affirmed within 34 days and was being filed within the
period of 120 days. In short, it is submitted that, though, plaintiff filed
an affidavit of serviced dated 07.09.2017 contending that, the writ of
N. M. No.2273/2024 -: 3 :- in C. S. No.915/2024

summons was served upon the defendant at its registered address at


Kolkatta on 26.04.2017, the defendant became aware about the suit
proceedings only after receipt of plaintiff’s advocate letter dated
13.08.2019 and writ of summons was never received on 25.04.2016. It
is also contended that, as per Exh.A of the affidavit of service, the letter
address by the Department of Post to the Sheriff of Mumbai states, that
it is intimated by Middleton Row S.O. that, the article was delivered on
25.04.2017, however, no specific details in relation to the address when
it was delivered are mentioned.

4) It is further contended that, the plaintiff has filed further


affidavit of service dated 25.10.2017, wherein, it is stated that copy of
the Plaint was served through email upon the defendant. The email
addresses at which the emails were sent are not specific to any officer.
The email address rina.media@nic.co.in is that of the Company
Secretary of the Defendant. Since only copy of the Plaint was forwarded
to the said address without Writ of Summons, the defendant could not
take any action.

5) The defendant has also made reference in para no.6 to some


proceedings before the Consumer Forum, which was contested between
the plaintiff and the defendant and mentioned that, the plaintiff
withdrew the complaint to approach the Civil Court, but took a step sot
serve Writ of Summons only in April 2017. Though, the suit was filed in
September 2017. Hence, it is prayed that, the written statement of the
defendant be allowed to be taken on record, in the interest of justice.
N. M. No.2273/2024 -: 4 :- in C. S. No.915/2024

6) The Ld. Counsel for the plaintiff vehemently opposed the


notice of motion and denied all contents therein by filling the affidavit
in reply. It is submitted that, the above notice of motion is not
maintainable because the defendant failed to comply with the
mandatory provisions of the Commercial Courts Act, 2015, specifically,
the time limit prescribed for filling a written statement. The Writ of
Summons dated 19.04.2017 along-with the true copy of the plaint was
duly served upon the defendant on 25.04.2017 by registered post in
compliance order passed by the Ld. Prothonotary and Senior Master of
the Hon’ble High Court. A copy of the letter from the Sherrif’s office is
produced as a Exh.A with the affidavit in reply and email dated
21.08.2017 was also sent to the defendant official email address
ensuring that the defendant was fully aware of the proceedings.
Therefore, the defendant cannot claim ignorance to excuse delay in
filling the written statement. Inspite of due service, the defendant failed
to file written statement within the statutory time frame of 120 days.
Hence, as per the judgment of the Hon’ble Supreme Court of India in in
the case of M/s. SCG Contracts India Pvt. Ltd. Vs. K. S. Chamankar
Infrastructure Pvt. Ltd. (AIR 2019 Supreme Court 2691), the Written
Statement has to be filed within 120 days and cannot be filed thereafter
as right to file Written Statement stands forfeited. The defence of the
defendant will have to be struck off and the written statement will have
to be taken off the record.

7) After hearing both the sides at length, I find that the delay in
filling the written statement is not of simplicitor 34 days. If the affidavit
of service dated 07.09.2017 filed by the plaintiff on record is perused,
then the Writ of Summons appears to have been served upon the
N. M. No.2273/2024 -: 5 :- in C. S. No.915/2024

defendant at its registered address at Kolkatta on 25.04.2017. Moreover,


it also appears that the email was sent on the official address of the
defendant on 21.08.2017, but the present notice of motion is moved on
03.01.2020. Therefore, the said delay is not simplicitor of 34 days but of
about 3 years. Now, therefore, in view of the mandate contained in
amended Order VIII, Rule 1 and Rule 10 of the CPC, the written
statement filed beyond 120 days from the date of service of summons
cannot be taken on record, as the defendant has forfeited his right to
file the written statement. This is also clarified by the Hon’ble Apex
Court in the judgment cited at supra in the case of M/s. SCG Contracts
India Pvt. Ltd. Vs. K. S. Chamankar Infrastructure Pvt. Ltd. (AIR 2019
Supreme Court 2691). Hence, I find no merit in the above notice of
motion. Therefore, I answer point No.1 in the negative and I proceed to
pass the following order;
ORDER
1) Notice of Motion No.2273/2024 stands dismissed.

2) No order as to costs.

3) Notice of Motion No.2273/2024 stands disposed off accordingly.


Digitally signed
by AEJAZUDDIN
AEJAZUDDIN SALAUDDIN
SALAUDDIN KAZI
KAZI Date:
2024.10.09
16:59:56 +0530

(A. S. KAZI)
Additional Sessions Judge,
City Civil & Sessions Court,
Date:.09.10.2024 Mazgaon, Gr. Mumbai
(C. R. No.14)
Direct Typed on : 09.10.2024
Signed on : 09.10.2024
N. M. No.2273/2024 -: 6 :- in C. S. No.915/2024

“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL


SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 09.10.2024 NAME OF STENOGRAPHER
TIME: 03.40 p.m. Mr. Ashok Sudhakar Patil

Name of the Judge (With Court HHJ Shri. A. S. KAZI


room no.) (Court Room No.14)
Date of Pronouncement of 09.10.2024
JUDGEMENT/ORDER
JUDGMENT/ORDER signed by P. O. 09.10.2024
on
JUDGEMENT/ORDER uploaded on 09.10.2024

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