1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4229 OF 2008 IN SUMMARY SUIT NO.120 OF 2005 WITH NOTICE OF MOTION NO.4230 OF 2008 IN SUMMARY SUIT NO.359 OF 2005 Vinod R. Shah ..Plaintiff V/s Dinesh P. Mehta ..Defendant Mr.Vinod R. Shah, plaintiff in person present Mr.Pankaj Das, Advocate, for the defendant CORAM : R.M.SAVANT, J. DATE : 17TH DECEMBER, 2008 P.C. . By the above Notices of Motion, the defendant in both the suits seeks the following reliefs. (a) That this Hon'ble Court be pleased to condone the delay in filing the Written Statement of the defendant. 2 (b) That this Hon'ble Court be further pleased to direct the office to accept the Written Statement of the defendant on record. 2. The above Summary Suit No.120 of 2005 has been filed by the plaintiff claiming an amount of Rs.6,84,000/- as per the particulars of the claim and in Summary Suit No.359 of 2005 the plaintiff claims an amount of Rs.3,00,000/- as per the particulars of the claim at Exhibit “H” to the plaint. 3. In both the suits the plaintiff had filed Summons for Judgment in which an order came to be passed on 17th July, 2008, by Mr.Justice S.J.Vazifdar granting unconditional leave to the defendant. By the said order, it was directed that the defendant should file his Written Statement within a period of four weeks of the date of the order. In view of the fact that the defendant could not file the Writen Statement within a time stipulated in the said order that the instant Notice of Motions have been filed for the reliefs prayed for. 4. It is the case of the defendant that the plaintiff and the 3 defendant are involved in various litigations against each other which include the complaints filed under Section 138 of the Negotiable Instruments Act, 1881. It is further the case of the defendant that the above suits have been filed on the basis of documents which are forged and fabricated. It is the case of the defendant that he has not signed the declaration on the basis of which Summary Suit No.120 of 2005 is filed and has not signed the cheque on the basis of which Summary Suit No.359 of 2005 is filed. The defendant claims to have obtained a Handwriting Expert's Report. Some contradictions made by the plaintiff as regards the cheques purportedly issued by the defendant is highlighted. It is the case of the defendant that in view of the proceedings pending before the learned Metropolitan Magistrate as well as the proceedings pending before this Court, and since the documents were required to be looked into, the preparation of the draft of the Written Statement took some time and therefore, the Written Statement could not be filed within the time stipulated by this Court in the Order dated 17th July, 2008. It is further the case of the defendant that the defendant changed his advocate and appointed 4 the present advocate, who immediately took steps to draft the Written Statement. However, after preparaton of draft the finalisation of the Written Statement took time and the Written Statement was ready for filing on 24th November, 2008 and thus, has resulted in delay of 112 days in filing the Written Statements. 5. On behalf of the plaintiff an affidavit-in-reply has been filed by him opposing the Motions. The sum and substance of the case of the plaintiff is that the defendant having appeared in various litigations between the parties before different fora cannot now contend that the delay in filing the Written Statement has to be condoned. In the said affidavit-in-reply the various dates on which the defendant appeared in different courts has been mentioned. The conduct of the defendant in disposing of certain properties over which the plaintiff has allegedly sold is also sought to be highlighted. 6. Having heard the plaintiff in person and the learned counsel 5 for the defendant and considering the reasons cited in the affidavit in support of the motions, in my view, the delay of 112 days in filing the Written Statements require to be condoned. The plaintiff also accepts the position that there are number of litigations going on between the parties in different fora and therefore, in the teeth of the said fact the reason given by the defendant in not filing the Written Statements in time deserve acceptance. However, since the above suits are filed under Order XXXVII, in my view, the defendant would have to be put to terms. The Notice of Motions are, therefore, allowed in terms of prayer clauses (a) & (b) subject to the defendant paying costs of Rs.5000/- in each of the above Motions to the plaintiff within a period of two weeks from date. Only after the defendant produces the acknowledgement having paid the said costs to the plaintiff that the Written Statement in both the Suits will be taken on record by the registry. The Notice of Motions are accordingly made absolute in the aforesaid terms. (R.M.SAVANT, J.) 6