1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8831 of 2009 Mr.Bimal Chandulal Gariba .. Petitioner versus The New Vikrant Co-operative Housing Society Limited and others .. Respondents Mr.Bhavin Bhatia for the Petitioner. Mr.P.A.Sawant for the Respondent No.1 CORAM : A.S.OKA, J. DATE : 9th February 2010. JUDGMENT : . By this writ petition under Article 227 of the Constitution of India, the petitioner who is the second defendant has challenged the judgment and order dated 3rd October 2009 by which a Notice of Motion taken out by the petitioner has been dismissed. 2. The first respondent is the original plaintiff. On 26th December 2007, a writ of summons of the suit filed by the first respondent was served to the petitioner. The present Notice of Motion was taken out by the petitioner in January 2009 . In the said Notice of Motion, the petitioner prayed for condonation of delay in filing his written statement. A prayer was also made to recall the order dated 6th January 2009 in so far as certain documents were exhibited as exhibit 2 Nos. 11 to 17 under the said order. Another prayer was made for recalling the first witness examined by the first respondent for cross- examination by the petitioner. In the affidavit in support various reasons were set out for delay in filing written statement. The notice of motion was opposed by the first respondent by filing an affidavit in reply. By the impugned order, the learned trial judge held that there were more than sufficient opportunities available earlier to the petitioner to file written statement. 3. The learned counsel appearing for the petitioner submitted that the entire affairs of the first defendant partnership firm were looked after by his deceased father and at the relevant point of time the petitioner did not have much knowledge about the business of the partnership. It is pointed out that in the year 2007 ,there were number of deaths in the family of the petitioner. He pointed out that in the affidavit in support of the Notice of Motion reasons are assigned as to why written statement could not be filed earlier. He pointed out that along with the Notice of Motion, affirmed written statement has been tendered on record. He submitted that existence of extraordinary circumstances was established by the petitioner. The learned counsel appearing for the first respondent submitted that there is a gross unexplained delay on the part of the petitioner. He submitted that there is no reason assigned as to why throughout the year 2008 3 written statement could not be filed. He submitted that after recording examination of the first witness of the first respondent, now the clock cannot be set back. He submitted that the petitioner be dismissed with costs. 4. I have perused the Annexures to the petition. I have carefully considered the submissions. Even according to the case of the petitioner , the writ of summons was served on 26th December 2007. In the affidavit in support, the petitioner has stated that in the year 2007 there were number of deaths in the family including the death of his uncle, father, and paternal aunt. It is stated that the petitioner was not conversant with the business of the first defendant firm as his father was looking after the business. In the affidavit it is stated that the petitioner was in the state of shock when the suit summons was served in as much as his four close relatives including the petitioner’s father and uncle died in the year 2007.In the paragraph 4 of the affidavit in support , the petitioner has set out dates on which his father , uncle and other close relatives died. In paragraph 5 to 8 of the affidavit in support the petitioner has stated that : “5. I say that due to the aforesaid reason my entire family was in state of shock due to the four deaths in the family within a short span of time and hence upon receipt of the aforesaid papers I was not even in a position to understand about subject matter. 6. I say that notwithstanding the above since I have been made 4 as party defendants, and even though I was not in actual state as to whom I should approach at that point of time some advocate with whom my father had his contacts. I say that accordingly I had started visiting the advocates offices however was not in a position to give any instructions without knowledge and even for the reason as stated above. 7. I say and submit that eventually for one or two dates I made by representative to look after the matter since had lost the track of dates and finally on 20.11.2008 I made any advocate on record to remain present on the said date and accordingly he had filed his vakalatnama in the above matter. I say and submit that the matter thereafter stood adjourned to 6th January 2009. 8. I say that though my advocate appeared on 20th November 2008 and though the draft written statement was prepared by him for the reason of his own wedding he has left for his native place on 22nd November 2008 and after completing his wedding and post marriage functions he had only had return on last week of December 2008 and for the said reason the written statement alongwith the appropriate papers could not have been finalised due to the communication gap and personal difficulty on part of my advocate. I say and submit that even thereafter my advocate had further undergone the micro footnail surgery and for the same reason he could not be appear before this Hon’ble Court even on 6th January 2009 and even thereafter I say that in the mean period I could neither handover the draft copies of written statement to finalise the same nor could follow up the matter with my advocate for the aforesaid reason. I say that for the aforesaid circumstances though the written statement was drafted the same could not have been filed and or affirmed and it is on account of the same the same remain to be filed with this Hon’ble Court.” 5. In the reply filed to the Notice of Motion, it was contended that the statements made by the Petitioner were absolutely false. It is contended that the Petitioner slept over the matter for a long time. While passing the impugned order, the learned trial judge has observed that on 20th November 2008 when the suit was fixed for recording of evidence of the first respondent, an affidavit in lieu of 5 examination-in-chief and a compilation of documents was filed by the first respondent. On the very day the copies thereof were supplied to the advocate for petitioner who was present in the Court. Thereafter the suit was adjourned to 6th January 2009. On that day neither the petitioner nor his advocate were present. On that day, the cross- examination of the first witness examined by the first respondent was closed and the suit was adjourned for further evidence of the first respondent. The suit was kept on 19th of January 2009 when the Notice of Motion was filed. 6. In the affidavit in support of the Notice of Motion the Petitioner has set out that there were four deaths including the death of his father and uncle in the year 2006-2007. There is an explanation set out by the petitioner for such a long delay. Considering the nature of the prayers in the suit, the prayers (a) and (b) made by the petitioner ought to have been allowed subject to payment of exemplary costs. Therefore, the petition must succeed. The amount of costs is quantified at Rs. 30,000/-. The amount of costs has been already paid by the petitioner to the first respondent by a demand draft. It is made clear that a separate application will have to be filed for prayer clauses (c) and (d) after additional issues ,if any, are framed. The 1st respondent will be entitled to lead further evidence for dealing with the written statement of the petitioner. 6 7. The petition is disposed of by passing the following order: : O R D E R : (a) The impugned order dated 3rd October 2009 is quashed and set aside. (b) The notice of motion taken out by the petitioner (Exhibit 19) is made absolute in terms of prayer clauses (a) and (b) subject to the petitioner paying costs of Rs.30,000/- to respondent No.1. The amount of costs has already been paid in the form of a demand draft to the 1st respondent. (c) It is made clear that as far as prayer clauses (c) and (d) of Exhibit 19 are concerned, the petitioner will have to take out separate proceedings for the said relief and all contentions of the parties in that behalf are kept open. (d) Hearing of the suit is expedited (A.S.OKA, J)