Suchak Hospital And 2 ORS. v. Amita Ashok Suchak And 2 ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1900 OF 2019 IN COMMERCIAL SUIT NO.463 OF 2019 Dr.Amita Ashok Suchak )....Applicant/Defendant no.1

IN THE MATTER BETWEEN :

Suchak Hospital & Ors.

)....Plaintiffs V/s.

Dr.Amita Suchak & Ors.

)....Defendants ---- Mr.Chirag Balsara a/w Mr.Sachin Mahagaonkar, Mr.Darshit Shah, Mr.Jimish Shah and Mr.G.S.Sethi i/by Divya Shah Associates for applicant.

Mr.Sharan jagtiani a/w Ms.Kritika Sethi i/by Cyril Amarchand Mangaldas for defendant no.1.

---- CORAM : K.R.SHRIRAM,J DATE : 20.8.2019 P.C.:- 1.

Heard the counsel. This is an application by defendant no.1 to condone the delay of 88 days beyond the 30 days period and take the written statement on record. Order VIII Rule 1 of the Code of Civil Procedure as amended reads as under :- "1. Written statement - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :

2/4 Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

2.

The Court therefore, can grant an extension if the application is made within a further period of 90 days for reasons to be recorded in writing. There is a delay of only 88 days. I am inclined to condone the delay and direct the registry to take the written statement on record.

3.

The reason why I am allowing the application is (a) plaint was lodged on 15.10.2018 and the writ of summons has been served on 1.4.2019 after delay of 5 & 1⁄2 months of lodging the plaint. Compared to that, 88 days is nothing. Of course, rule 87 of the Bombay High Court (O.S.) Rules, requires writ of summons to be served within six months but the fact that plaintiff has taken 5 & 1⁄2 months to serve writ of summons persuades me to grant 88 days extra to defendant no.1 to file written statement ; (b) secondly, this is a dispute between close family members. Plaintiff no.2 is the brother of deceased husband of defendant no.1. Plaintiff no.3 is wife of plaintiff no.2 ; and (c) This Court had also appointed Mediator in March-2019

3/4 [Hon'ble Mr.Justice S.J.Vazifdar (retd.)]. Mediation process is still going on. In the affidavit-in-support, applicant has given detailed reasons why the written statement could not be filed within 30 days of receiving the writ of summons. I am accepting all the reasons. 4.

In the circumstances, application is allowed in terms of prayer clause-(a) which reads as under :- "(a) That delay of about 88 days in filing Written Statement be condoned and Defendant No.1 be granted leave to file its Written Statement."

5.

Mr.Balsara for applicant presses for costs and submits that costs may be given to some charity. Applicant to pay sum of Rs.10,000/- to Free Opthalmic Hospitals Society and this amount to be paid and compliance affidavit to be filed within 3 weeks from today. The account details are as under :- S.B.Account No.011710005364 IFSC Code : BKDN0450117 Dena Bank, Parel, Mumbai-400 012 Mr.Balsara states writ of summons have been served on the remaining defendants but there are no final reliefs sought against those defendants.

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Suit be listed for directions on 4.10.2019. The time for Mediator to complete mediation extended upto 8.11.2019. 7.

For compliance of record, registry to take the sur-rejoinder of plaintiff on record.

(K.R.SHRIRAM,J)