Bombay High Court
Shree Simandhar Swami Aradhana Trust vs Veekalal Investment Company Private ... on 1 July, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-OS:9635
IAL-7537-2024-IN-S-3-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 7537 OF 2024
IN
SUIT NO. 3 OF 2021
Shree Simandhar Swami Aradhana Trust
...Org. Defendant No.11/
Applicant
IN THE MATTER BETWEEN :-
M/s. Veekaylal Investment Company
Private Limited and Ors ...Org. Plaintiff/
Respondent
v/s.
M/s. Rushi Constructions & Ors ... Defendants
Mr. Dhaval Shetia a/w Ms. Meharunissa Tole i/b Mr. Rajeev Sharma,
Advocate for the Plaintiff in S/3/2021 and for Respondent in
IAL/7537/2024.
Mr. Adil Parsurampuria a/w Mr. Mehul Rathod, Ms. Darshana Vora i/b
M/s. KVT Legal, Advocate for the Defendant No.11 in S/3/2021 and for
Applicant in IAL/7537/2024.
CORAM : ABHAY AHUJA, J.
DATE : 1st JULY, 2024
PC. :
1. This Interim Application seeks setting aside of the order dated 5 th January, 2024 of the Prothonotary and Senior Master transferring the Suit to the list of undefended suits inter alia, with respect to the present Applicant and for condonation of delay in filing written statement and ksg 1/6 ::: Uploaded on - 03/07/2024 ::: Downloaded on - 04/07/2024 02:42:58 ::: IAL-7537-2024-IN-S-3-2021.doc for direction to the Prothonotary and Senior Master to take the written statement on record in a time bound manner.
2. Mr. Adil Parsurampuria, learned Counsel appears for the Applicant who is Defendant No.11 and would submit that the Applicant is a trust governed by the Bombay Public Trusts Act, 1951 having its registered office at Ahmedabad. Mr. Parsurampuria, learned Counsel would submit that although a writ of summons has been received on 11th February, 2021 and the 30 day period to file written statement ended on 11th March, 2021, however, in view of the fact that the period for filing the written statement fell within the period excluded by the Hon'ble Supreme Court due to Covid-19 pandemic, this Court considering that the Prothonotary and the Senior Master had given time on 6th November, 2023 to file written statement by 4 th January, 2024 and also considering that the written statement was signed and verified on 3rd January, 2024 in Gujarat but was not in hand on 5 th January, 2024, when the order transferring the suit as against the said Applicant to the list of undefended Suit came to be passed, and that the applicant being a public charitable trust and has been diligently pursing the cause of the trust and running a temple from the subject property in respect whereof declaration has been sought, this Court ksg 2/6 ::: Uploaded on - 03/07/2024 ::: Downloaded on - 04/07/2024 02:42:58 ::: IAL-7537-2024-IN-S-3-2021.doc condone the delay upon terms that this Court deems appropriate as there is sufficient cause for condoning the delay in view of the Covid-19 pandemic in view whereof the Applicant trust took some time to collate the documents and to instruct the Advocate to prepare the written statement. That therefore despite directions passed on 6 th November, 2023, written statement could not be finalized and filed. Thereafter, the Suit appeared before the Prothonotary and Senior Master on 5 th January, 2024 and the suit has been transferred from that date to the list of undefended suits. Mr.Parsurampuria would submit that the delay is not intentional. That if this Court permits the Applicants to file the written statement, no prejudice would be caused to the Plaintiff as the Plaintiff has also filed an Interim Application for amending the plaint which is pending. Besides, the Interim Application for ad-interim, interim reliefs still remains pending. Mr. Parsurampuria would submit that the trial has also not commenced. That therefore, this Court condone the delay upon terms as this Court would deem appropriate.
3. On the other hand, Mr. Dhaval Shetia, learned Counsel for the Plaintiff opposes the Interim Application submitting that although the writ of summons has been served on 11 th February, 2021, and although the Applicant Trust had filed reply to the Interim Application seeking ksg 3/6 ::: Uploaded on - 03/07/2024 ::: Downloaded on - 04/07/2024 02:42:58 ::: IAL-7537-2024-IN-S-3-2021.doc ad-interim/ interim reliefs alongwith documents therefore seeking condonation of delay of 1107 days on the pretext that there was Covid- 19 and that documents had to be collated to prepare the written statement, cannot be considered sufficient cause. Learned Counsel further submits that if this Court is inclined to allow the Application, this Court may impose costs.
4. Heard the learned counsel and considered the rival contentions.
5. It has not been disputed before this Court that the Notice of Motion for ad-interim, interim reliefs is still pending and there is also an Interim Application seeking to amend the plaint which is pending. The trial has not yet commenced. Although the writ of summons has been received by the Applicants on 11 th February, 2021, it cannot be denied that the period of limitation fell within the period which has been excluded by the suo-moto order of the Hon'ble Supreme Court. Learned Counsel for the Applicants has explained the reasons as to why it took time for collating the documents to prepare the written statement and that the reply was also filed opposing the Interim Application by the Plaintiff seeking ad-interim relief/interim reliefs. ksg 4/6 ::: Uploaded on - 03/07/2024 ::: Downloaded on - 04/07/2024 02:42:58 :::
IAL-7537-2024-IN-S-3-2021.doc
6. Although the period of limitation cannot be counted from the date on which directions were given by the office of the Prothonotary and Senior Master to file written statement but it needs to be noted that in the present circumstances in the Suit, reliefs have been claimed against the Applicant Trust for declaration that there is no right, title and interest in the suit property and to declare the transactions, illegal, null and void where it is claimed that the project has been completed. Therefore, it would not be fair to disentitle the Applicant Trust from filing the written statement to defend the case. In my view therefore, there is sufficient cause explained for the delay caused in filing the written statement, which can be condoned.
7. In the case of Kailash Vs. Nanhku and ors.1, the Hon'ble Supreme Court has observed that the timeline to file written statement in Order VIII Rule 1 of the Code of Civil Procedure, 1908 is directory and not mandatory and that in an exceptional situation the Court may extend the time for filing the written statement even though the period of 30 days and 90 days referred to in the said provision has expired.
8. This Court is therefore of the view that the delay in filing the written statement be condoned in view of the law settled by the Hon'ble Supreme Court.
1 2005 (4) SCC 480 ksg 5/6 ::: Uploaded on - 03/07/2024 ::: Downloaded on - 04/07/2024 02:42:58 ::: IAL-7537-2024-IN-S-3-2021.doc
9. In the case of Bharat Kalra vs. Raj Kishan Chabra2 the Hon'ble Supreme Court has held that if the delay in filing written statement can be compensated with costs, denying benefit of filing written statement would be unreasonable. I therefore propose to balance the inconvenience caused to the Plaintiff for the delay by imposing costs upon the Applicant to be paid to the Plaintiff.
10. In the circumstances, I am inclined to allow the Application subject to costs of Rs.5,000/- to be paid by the Applicant-Defendant No.11 into The High Court Non Gazetted Ministerial Staff Association, Mumbai, within a period of two weeks.
11. Subject to the above, the order dated 5 th January, 2024, transferring the Suit to the list of undefended Suit as regards the Applicant herein is hereby set aside. The delay in filing the written statement is condoned. The written statement on behalf of the Applicant be filed in the Registry within a period of three weeks.
12. Application accordingly stands disposed as above.
(ABHAY AHUJA, J.) 2 2022 SCC OnLine SC 613 Digitally ksg 6/6 signed by KIRAN KIRAN SANJAY SANJAY GHUGE GHUGE Date:
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