(1.) CM(M) 678/2004 seeks to challenge the order dated 19.01.2004 of the Additional District Judge in Suit No.46/03/00 whereby the learned Judge while adjudicating on the application of the petitioner under Order 9 rule 7 CPC has dismissed the same on the ground that written statement has not been filed for a considerable length of time and that time and again proceedings have been adjourned to enable the petitioner to file his written statement. The petitioner having taken undue advantage of a protracted trial cannot be shown any leniency.
(2.) Counsel for the petitioner submits that the written statement in the present case, was filed on 12.03.2003 vide dairy no.8496 in the High Court which was verified by this court on 19.05.2005. Merely because the written statement filed in the High Court has not found its way to the record of the case, is no fault of the petitioner and he cannot be penalized for the same. Counsel also submits that the amount sought to be recovered has already been deposited with the Company Court and, therefore, the amount is secured and no prejudice would be caused to the respondent.
(3.) Counsel for the respondent contends that the filing of the written statement was subject to payment of costs which costs have not been deposited. Counsel for the petitioner, Mr.Girdhar Govind submits that the costs have been paid.