: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 2905 OF 2008 OF MOTION NO. 2905 OF 2008 OF MOTION NO. 2905 OF 2008 IN IN IN SUIT SUIT SUIT NO. 2746 OF 1992 NO. 2746 OF 1992 NO. 2746 OF 1992 Mont Blanc Co-op Hsg. Soc. Ltd. & Anr. ... Plaintiffs. V/s. Mont Blanc Properties & Industries Ltd. ... Defendants. Mr. Shane Sapeco and Mr. Shailesh Poria i/b. Hariani & Co. for the Plaintiffs. Mr. Chetan Kapadia i/b. P.K. Shroff for the Defendants. CORAM CORAM CORAM : R.Y. GANOO, J. : R.Y. GANOO, J. : R.Y. GANOO, J. DATE DATE DATE : 08TH SEPTEMBER 2008. : 08TH SEPTEMBER 2008. : 08TH SEPTEMBER 2008. P.C. P.C. P.C. :- :- :- . The Defendants have taken out this Notice of Motion to see that order dated 17th June 2008 to the extent, it has resulted in suit proceeding without written statement against the Defendants should be set aside. The Defendants want that the Defendants should be permitted to file written statement after condoning the delay in filing the written statement. The Plaintiffs have filed affidavit in reply to the motion. : 2 : 2. On 11.12.1997 the suit was transferred to the list of undefended suit by rejecting the request to grant time to file written statement. This is on the ground that application for adjournment made on behalf of the Defendants was rejected by the Court. Thereafter, the matter appeared before the Court on 17th June 2008 wherein the Court observed that the suit was of the year 1992 and that written statement was not filed. Hence, the Court ordered that suit should be proceeded without the written statement on behalf of the Defendants. The Defendants herein took out Notice of Motion No.2343 of 2008 praying for condonation of delay in filing written statement and for taking written statement on record. That motion came to be disposed of by order dated 1st August 2008 thereby permitting the Defendants to take out motion to have order dated 17th June 2008 set aside and then pray for taking written statement on record by condoning the delay. It is, in these circumstances, the Defendants have taken out the present Notice of Motion. 3. Considering the entire record, following facts are noted :- : 3 : . On 11th December 1997, the learned Advocate appearing on behalf of the Defendants had sought time for four weeks to file written statement. That request was declined and the Court passed the following order :- " suit transferred to the list of undefended suits" This will clearly go to show that the request for time to file written statement was declined and the suit was ordered to be posted as undefended suit. Despite the aforesaid order, the suit appeared on the board once on 26th June 1998. The Court permitted the office to accept the written statement to be filed within two weeks from the date when the matter was on board that is 26th June 1998. The Court also passed an order stating that if the written statement is not filed, the suit should appear for ex-parte decree and it is thereafter, the learned Judge on 17th June 2008 noted that the written statement is not filed and hence, ordered that suit should be proceeded without written statement. The order dated 11th December 1997 itself clearly goes to show that the request for time to file : 4 : written statement was declined. No effort has been made by the Defendants to have order dated 11th December 1997 set aside. Now by this motion, order dated 17th June 2008 is sought to be set aside. 4. I have heard the learned Advocates on both the sides. In a matter of this nature the Court has discretion vested in it by virtue of the provisions of Code of Civil Procedure as well as the Original Side Rules to pass the appropriate order in the interest of justice. At the same time the Court has to consider the reasons mentioned by a party and whether the reasons mentioned by a party do provide proper explanation for not performing the job within the time specified by the provisions of law/order of Court. 5. In the present case, the Defendants have come out with three reasons for not filing the written statement within time. They are as follows :- (i) The Defendants were engaged in various litigations. : 5 : (ii) Repeated meetings were held with the Plaintiffs so as to settle the matter and that resulted in not filing written statement in time. It is required to be mentioned that the learned Advocate for the Defendants fairly conceded that the talks of settlement failed in the year 2003. It is required to be mentioned that no explanation is tendered by the Defendants in the affidavit in support of the Notice of Motion as to why the written statement was not prepared after 2003 and filed in the Court (iii) The draft written statement remained to be finalized and engrossed. 6. The learned Advocate for the Defendants contended that the Defendants have placed before the Court the reasons and the Court should accept these reasons. He urged that the Court has power to impose the cost and permit the Defendants to file written statement. The learned Advocate for the Defendants contended that if the written statement is not filed by the Defendants, it will result in serious consequences inasmuch as the Defendants would not be able to contest on merits. : 6 : 7. The learned Advocate for the Plaintiffs submitted that the reasons mentioned in the affidavit in support of the Notice of Motion cannot be accepted as good reasons According to the learned Advocate for the Plaintiffs, the reasons furnished do not provide proper explanation for delay and the delay of 3683 days cannot be condoned. He also submitted that the Defendants have not prayed for setting aside order dated 11.12.1997 by which the suit was transferred to the list of undefended suit. He pressed for dismissal of the Notice of Motion. 8. I have considered the rival submissions. It is required to be mentioned that the matter was appearing on board in the year 1997 regularly i.e. Roznama goes to show that the Court in those days granted extension of time to the Defendants to file written statement and ultimately on 11th December 1997 when the request was made, the Court declined the said request and transferred the suit to the list of undefended suit. Nothing is placed before the Court to show that this order dated 11th December 1997 is set aside or any efforts were made to have this order set aside. As a : 7 : result of the order dated 26th June 1998, the Defendants got two more weeks to file written statement. The Defendants did not make use of this period of two weeks for covering up the delay and filing of written statement. In the course of the arguments, on the query of the Court, learned Advocate for the Defendants indicated that it is not the case of the Defendants that they came to know about order dated 26th June 1998 after the sufficient lapse of time. No specific date is stated in the affidavit in support to show that as when the Defendants came to know about the order dated 26th June 1998. If this is the position, the Defendants failed to utilize the time granted to them by virtue of order dated 26th June 1998 and once again defaulted in complying with the requirement of filing written statement. 9. The Defendants have conceded that on 17th June 2008 when the matter was on board and when the order came to be passed viz. the suit to proceed without written statement, their Advocate was present before the Court. The Defendants have come out with a strange explanation that their Advocate thought that the Court has granted time to the Defendants to file written : 8 : statement. Such contention is set out by the Defendants in paragraph 9 of the affidavit in support of the Notice of Motion. It is difficult to accept that when the Advocate for the Defendants was present in the Court and in his presence the Court has passed the order viz. Suit to proceed without written statement, he took it as an order thereby granting time to the Defendants to file written statement. The learned Advocate for the Defendants stated that the written statement was declared by them on 1st July 2008 by relying upon the understanding of the Advocate as regards order passed on 17th June 2008 and that is how explanation is provided about written statement being kept ready for filing in the Court on 1st July 2008 after the Court condones the delay in Motion No.2343 of 2008. In my view, the above submissions made by the learned Advocate for the Defendants that on 17th June 2008 the Court permitted the Defendants to file written statement just cannot be accepted. The contention that the learned Advocate for the Defendants on 17.6.2008 took it that the Court granted time to file written statement cannot be accepted as probable. : 9 : 10. With this, I turn to the reasons which are mentioned by the Defendants to explain as to why they could not file written statement within the stipulated time. The three reasons which are mentioned above, in my view cannot be considered as proper reasons to condone the delay. 11. It may be true that the Defendants were engaged in various litigations. That however cannot be an excuse for not filing the written statement. 12. It may be true that the parties were trying to settle the matter. The Defendants contend that the talks failed in 2003. This will mean that the Defendants were required to explain the delay after 2003 that is for a period of 5 years. Nothing is placed before the Court through the affidavit in support to show as to why written statement was not filed after 2003 when Defendants realised that the suit is not getting settled. Hence this ground cannot be accepted. 13. The third ground relates to preparation of a draft and not engrossing it. In my view this can : 10 : hardly be treated as a ground to show that the Defendants were taking steps to file the written statement but could not do so. The third ground cannot be accepted as reasonable explanation for condoning the delay of 368 days. 14. The learned Advocate for the Defendants had contended that in the present case costs can be awarded and the Defendants can be permitted to file written statement. In my view, considering the conduct of the Defendants viz. not filing written statement prior to December 1997, not challenging the order dated 11.12.1997, not filing written statement as per order dated 26.6.1998 and not taking steps to file written statement after talks of settlement failed in such that the discretion cannot be exercised in favour of the Defendants. The contention of the learned Advocate for the Defendants that the Defendants be put the terms in the nature of costs so as to take written statement on record cannot be accepted. 15. For the reasons mentioned above, the motion is required to be dismissed. At the most, the Defendants need not be put to terms as regards cost so far as this : 11 : motion is concerned. Hence, I pass the following order :- O R D E R R D E R R D E R The Notice of Motion is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. The suit is now posted for receiving evidence affidavit and documents as per order dated 17th June 2008. The suit is set down for recording of evidence on 6th October 2008. (R.Y. (R.Y. (R.Y. GANOO,J.) GANOO,J.) GANOO,J.)