DOMBIVLI NAGARI SAHAKARI BANK LTD Vs. NIL

JUDGEMENT

(1.) This notice of motion is filed on behalf of the defendant seeking condonation of 71 days' delay in filing written statement in the above commercial suit. Mr. Gole, the learned counsel on behalf of the applicant, relies upon affidavit-in-support of the notice of motion dated 2nd May 2019 of one Sunil Gadgil, authorized representative. Mr. Gole submitted that the motion was taken out in time and that the writ of summons was served on 22nd January 2019. The motion was then lodged on 3rd May 2019. As a result, there is a total delay of 101 days from the date of service of writ of summons. However, since the period of 30 days was available to file written statement, the delay is about 71 days. It is submitted that the affidavit-in-support sets out sufficient reasons for condonation of delay.

(2.) Mr. Vashi on behalf of the plaintiffs has opposed this motion. He submitted that the suit was numbered on 11th January 2019. The plaint was served on 22nd October 2018. The summons was said to be issued on 19th January 2019. Thereafter, it was lodged in the Sheriff's office on 29th January 2019 and the summons was thereafter dispatched apparently on the same day. Service was effected on 31st January 2019.

(3.) Mr. Vashi has invited my attention to the relevant extract of the writ of summons, which requires the defendant to file written statement within thirty days and on payment of costs, written statement to be filed within extended period of 120 days from the date of service of writ of summons. He further submitted that after expiry of 120 days, the defendant loses its right to file the written statement. The summons was returnable on 11th February 2019, but the defendant had filed vakalatnama on 2nd May 2019. Mr.Vashi submitted that the plaintiff's Advocate received a notice stating that the defendant's Advocate Mr. Ashutosh Gole would be mentioning matter before this court on 3rd May 2019 at 3 p.m. seeking condonation of delay. The matter was mentioned; however, the court directed that an appropriate application be filed. This motion was filed on the very same day. However, according to Mr. Vashi, no attempt was made to get the motion listed. Meanwhile, period of 30 days having expired on 2nd May, the extended period of 90 days has commenced from 1st May and this period expired on 31st May. The defendant having failed to make any further attempts to move a motion and obtain an order, it lost the right to file the written statement.