Bombay High Court
Mac Impex vs Benin Negoce Et Commerce International ... on 25 July, 2022
Author: R. I. Chagla
Bench: R. I. Chagla
TAUSEEF
LAIQUEE
FAROOQUI 20-IA.672.2020.doc
Digitally signed by
TAUSEEF LAIQUEE
FAROOQUI
Date: 2022.07.27
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
18:04:44 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.672 OF 2020
WITH
NOTICE OF MOTION (NMCD) NO.1432 OF 2018
IN
COMMERCIAL SUIT NO.853 OF 2018
Benin Negoce Et Commerce
International (BNCI), Sarl & Ors. ...Applicant/Defendant Nos.1 to 3
In the matter between:-
Mac Impex ...Plaintiff
V/S
Benin Negoce Et Commerce
International (BNCI), Sarl & Ors. ...Defendants
-------
Mr. Jasbir s. Saluja i/by Ms. Ankita Dogra for Plaintiff.
Mr. Prashant P. Kulkarni for Defendant Nos.1 to 3.
Ms. Sumi Soman for Defendant No.5.
-------
CORAM : R. I. CHAGLA, J.
DATED : 25th JULY, 2022.
P.C.
1. Heard learned counsel for the parties.
2. This Interim Application had been taken out by the Applicant/Defendant No.1 to 3 for condonations of delay in filing the Tauseef 1 of 5 20-IA.672.2020.doc written statement and for acceptance of written statement of the Defendants by the Registry.
3. By an order dated 3rd February 2020, the relief sought for in the Interim Application insofar as Defendant Nos.1 and 2 were concerned, in view of the writ of summons not having been served upon them and they waived service of writ of summons was allowed and they were directed to file their written statement within a period of 30 days from the date of the said order.
4. Insofar as Defendant No.3 was concerned, it was noted that the writ of summons had been served on Defendant No.3, but the Interim Application was taken out on 24 th January 2020 and affirmed on that date which was on the very 120 th day and hence Application was made by the learned counsel for the Applicant for condonation of delay. There was a prima facie finding that Defendant No.3's Applications appears beyond the stipulated period of 120 days as permissible in law.
5. By a subsequent order dated 12 th February 2020, this Court had once again considered the Interim Application jointly filed by Defendant Nos.1 to 3 which had sought leave to file written statement after condoning the delay of 88 days. It was noted that on Tauseef 2 of 5 20-IA.672.2020.doc 3rd February 2020, the Interim Application No.1 of 2020 was recorded as disposed of though it was allowed only against Defendant Nos.1 and 2. However, the Interim Application on behalf of Defendant No.3 was not considered.
6. In view thereof, this Court had recalled order dated 3 rd February 2020 to the extent of the Interim Application No.1 of 2020 being disposed of against Defendant No.3, Reply was to be filed by Defendant No.3. The Interim Application has thereafter come up today, though listed prior thereto but could not reach due to paucity of time.
7. The learned counsel for the Applicant has submitted that the written statement has been filed by Defendant Nos.1 and 2, pursuant to the order dated 3rd February 2020 within the period of 30 days granted by this Court. However, in view of the order dated 12th February 2020, the Application of Defendant No.3 was not considered though joint Application was made in the Interim Application. He has submitted that if the period after service of writ of summons on 27th September 2019 was to be computed, there is a delay of 119 days. He has submitted that in view of Defendant Nos.1 and 2 being allowed to file the written statement, Defendant Nos.3 Tauseef 3 of 5 20-IA.672.2020.doc should not be precluded from filing the written statement. Further, considering that the Advocate for the Applicants on personal grounds made out in the Interim Application could not file the written statement in time.
8. Mr. Saluja, learned counsel for the Plaintiff has stated that there is no authority of Defendant no.1 to represent Defendant Nos.2 and 3 which has been disclosed. He has submitted that the delay in filing the written statement on behalf of Defendant No.3 should be taken into account, particularly considering that Defendant No.3 was served with the writ of summons on 27 th September 2019. Since Defendant Nos.1 and 2 were not served with the writ of summons, this Court had allowed the filing of the written statement by them.
9. Having considered the submissions in my view, since the delay in filing the written statement is 119 days upon computing the period after service of writ of summons on 27 th September 2019 till the filing of the present Interim Application on 24 th February 2020, the relief sought for by the remaining Defendant No.3 requires to be favourably considered. Defendant Nos.1 and 2 have already filed their written statement as per the liberty granted by this Court on Tauseef 4 of 5 20-IA.672.2020.doc 3rd February 2022. In the interest of justice and considering the personal grounds made out in the Interim Application, Defendant No.3 cannot be precluded from filing written statement. However, this will be subject to Defendant No.3 disclosing the authority of Defendant No.1 to represent Defendant Nos.1 to 3. Hence, the following order is passed:-
(i). The delay in filing the written statement which is within 120 days of being served with the writ of summons, considering the writ of summons being served on 27th September, 2019 and the Interim Application being filed on 24th February 2020, is condoned.
(ii). The written statement shall be filed by Defendant No.3 within a period of 30 days from the date of this order, subject to Defendant No.3 disclosing the authority of Defendant No.1 to represent Defendant Nos.1 to 3 in the proceedings.
(iii). The Interim Application is disposed of in the above terms.
(R. I. CHAGLA, J.) Tauseef 5 of 5