Bombay High Court
Merit Magnum Constructions; vs Nand Kumar Anant Vaity And 44 Ors on 14 January, 2020
Author: N. J. Jamadar
Bench: N. J. Jamadar
9-IA1-19INS2715-07.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1 OF 2019
IN
SUIT NO. 2715 OF 2007
Deonar Industrial Premises Cooperative
Society Limited ...Applicant
In the matter between
Merit Magnum Construction ...Plaintiff
Versus
Nandkumar Anant Vaity & ors. ...Defendants
Ms. Madhulika Murthy, a/w Karl Tamboly, for the Plaintiff.
Mr. Ponvel Nadarajan, representative of Defendant no.41,
present in-person.
CORAM: N. J. JAMADAR, J.
DATED : 14th JANUARY, 2020 Oral Order:-
1. Defendant no.41 has taken out this application seeking permission to fle additional written statement consequent to the amendment in the plaint.
2. In the application, it is averred that the plaintiff by taking out a Chamber Summons No.261 of 2013 has sought amendment in the plaint so as to incorporate an alternate claim and prayer. This Court allowed the Chamber Summons by order dated 3rd April, 2013 and reserved the liberty to defendant no.41 to fle further written statement within 30 days of the 1/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 ::: 9-IA1-19INS2715-07.DOC copy of the amended plaint being served by the plaintiff upon defendant no.41.
3. In the suit, defendant no.41 had taken out Notice of Motion No. 1716 of 2010 in Notice of Motion No.3679 of 2007 seeking, inter alia, an order for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 ('the Code') and also for determination of issue of limitation as preliminary issue under Section 9A of the code, as it then stood, in its application to the State of Maharashtra.
4. This Court by an order dated 10 th June, 2013 was persuaded to reject the plaint in respect of the frst property i.e. property bearing Survey No.34 (Exhibit-A1), under Order VII Rule 11(d) of the Code. It was further directed that the suit shall be restricted to the claim of the plaintiff as regards the land-locked property i.e. second property described in the Schedule 'Exhibit-A2' appended to the plaint. Defendant no.41 was directed to fle its written statement with regard to the said claim within 30 days thereof.
5. The aforesaid order was carried in appeal by the plaintiffs. In Appeal No.443 of 2013, by judgment and order dated 15th October, 2013, the Appeal Bench was persuaded to allow the appeal holding, inter alia, that the plaint, so far as the 2/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 ::: 9-IA1-19INS2715-07.DOC frst property is concerned, could not have been rejected by resorting to the provisions contained in Order VII Rule 11 of the Code. The Notice of Motion No.1716 of 2010 was thus restored to fle.
6. It is the claim of defendant no.41 that after the entire claim of the plaintiff came to be restored there was no specifc direction calling upon defendant no.41 to fle an additional written statement. Hence, the written statement could not be fled. In the event it is held that the prayer of the applicant seeking permission to fle additional written statement, qua the amended plaint is belated, the delay be condoned and defendant no.41 be permitted to fle an additional written statement. Lest, defendant no.41 would suffer an irreparable loss.
7. The plaintiff has resisted the application by fling an affdavit-in-reply. The application is stated to be hopelessly time barred. There is a delay of around 2180 days. No cause much less suffcient has been ascribed by defendant no.41. Hence, the application deserves to be rejected as there is an inordinate delay in seeking permission to fle an additional written statement.
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8. Heard Ms. Murthy, the learned Counsel for the Plaintiff and Mr. Nadarajan appearing in-person for defendant no.41, at some length.
9. Mr. Nadarajan, took me through the various orders passed by this Court, commencing from the order dated 3rd April, 2013, whereunder the permission to amend the plaint was granted, to the order passed by the Appeal Bench in Appeal No.443 of 2013 dated 10th October, 2015. It was urged that while restoring the entire claim of the plaintiff, as amended, there was no direction for fling the written statement.
10. In opposition to this, it was submitted that once the Notice of Motion No. 1716 of 2013 came to be restored to fle, the order passed by this Court on 3rd April, 2013, wherein a direction was given to defendant no.41 to fle written statement stood revived in its entirety and it was incumbent upon defendant no.41 to fle additional written statement within the stipulated period. The inaction on the part of defendant no.41, even after the order of the Appellate Court in Appeal No.443 of 2013, was pressed into service to draw home the point that the application not only lacks in due diligence but bona fde.
11. The plaintiff has instituted the suit for specifc performance of the contract. The plaintiff has sought 4/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 ::: 9-IA1-19INS2715-07.DOC declaration that defendant nos.1 to 39 are the owners of the suit property described in Exhibit-A1 and, conversely, defendant no.41 has no right, title or interest in the said property. Defendant no.41 is also sought to be perpetually restrained, by an order of injunction from in any manner alienating, encumbering, transferring or creating any third party rights over the suit property Exhibit-A1. In the alternative, damages are sought from defendant nos.1 to 40.
12. In the backdrop of the aforesaid claim, defendant no.41 fled the written statement in the year 2001. The amendment in the plaint came to be carried out in terms of order dated 3 rd April, 2013. Indisputably, defendant no.1 was granted time to fle written statement within 30 days of the service of the amended plaint. The order in Notice of Motion No.1716 of 2010, interjected the proceedings in the suit. By the said order, this Court rejected the plaint under Order VII Rule 11(d) of the Code in respect of the suit property Exhibit-A1. The suit was, however, kept alive so far as the property described in Exhibit A2. Defendant no.41 was again granted liberty to fle written statement in respect of the property described in Exhibit A2 within 30 days thereof.
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13. The situation which thus obtains is that till passing of the judgment in Appeal No.443 of 2013, the substantial part of the plaintiffs claim was effaced. In this context, Mr. Nadarajan urged that since defendant no.41 has already raised appropriate defences as regards the second property described in Exhibit A2, there was no occasion to fle further written statement. The default on the part of defendant no.41 in fling the written statement is thus required to be reckoned from the date of order passed by the Appellate Court in Appeal No.443 of 2013.
14. The appeal Court while restoring the Notice of Motion No.1716 of 2010 to the fle of this Court had not indicated any time within which defendant no.41 shall fle further written statement, if desired to. However, that does not furnish a justifable reason for not fling the written statement within a reasonable time of the restoration of Notice of Motion No.1716 of 2010 and consequently the claim of the plaintiff as regards the frst property. The submission on behalf of defendant no.41 that in the absence of a direction to fle a written statement within a specifc period, defendant no.41 was not enjoined to fle the additional written statement thus does not deserve countenance.
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15. In view of the provisions contained in Order VIII Rule 9 of the Code, the Court is empowered to prescribe the time for fling an additional written statement subsequent to the fling of initial written statement. In the facts of the instant case, the delay in preferring the written statement is thus required to be reckoned after the expiry of 30 days of the restoration of Notice of Motion No.1716 of 2010 by the order of the Appellate Court in Appeal No.443 of 2013 i.e. 15th October, 2013. The question which thus warrants consideration is whether defendant no.41 has made out a justifable ground for fling an additional written statement.
16. The application proceeds on the premise that since there was no direction by the Appellate Court, defendant no.41 was not required to fle written statement. Undoubtedly, there are averments which advert to the prejudice, which may be caused to defendant no.41, in the event the defendant is precluded from fling the additional written statement. By a catena of decisions it is now fairly well settled that the prescription of time for fling the written statement is not for nothing. Though the provision has been construed to be directory, yet, the belated fling of the pleadings cannot be allowed as a matter of course. There has to be a justifable reason for condoning the delay. 7/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 :::
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17. In the instance case, the fact that a substantial part of the claim of the plaintiff was held to be barred by limitation and the plaint was rejected so far as the frst property i.e. suit property described in Exhibit-A1, has a material baring on consideration on the instant application. The relief sought against defendant no.41 revolves around the frst property i.e. Exhibit-A1. A positive and negative declaration is sought against defendant no.41, in respect of the said property. In the aforesaid circumstances, defendant no.41 would suffer irreparable loss, if defendant no.41 is precluded from meeting out of the case set up by the plaintiff by way of amendment. The fact that defendant no.41 society was carrying an incorrect impression that it was not required to fle additional written statement as there was no specifc direction for fling the same post restoration of Notice of Motion No.1716 of 2010, thus, deserves to be considered so as to advance the cause of substantial justice.
18. For the foregoing reasons, the application deserves to be allowed.
19. Hence the following order:
(i) The application stands allowed.
(ii) The delay in fling additional written statement stands condoned.8/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 :::
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(iii) Defendant no.41 is permitted to fle additional written statement, which is stated to be verifed on 30 th September, 2019, during the course of the day and serve its copy on the plaintiff.
20. The interim application stands disposed of.
[N. J. JAMADAR, J.] 9/9 ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:15:25 :::