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Vimla Apartment Chs Ltd. v. M.K. Builders and 7 Ors.

Bombay HC13 Feb 2025IA/380/2025

Case brief

AI extract

What is this about?

condonation of delay; written statement; Prothonotary & Senior Master; list of undefended suits; cooperative housing society; writ of summons service by registered post; Registry to accept written statement; Bombay High Court Ordinary Original Civil Jurisdiction; Interim Application No. 380 of 2025; Suit No. 237 of 2023; Abhay Ahuja, J.; 27 February 2024 order set aside

What did the court decide?

Setting aside of the order dated 27 February 2024 of the Prothonotary & Senior Master; condonation of delay in filing the written statement; direction to the Registry to accept the written statement; and direction to serve a copy of the written statement on the Plaintiffs within one week. ¶33

Vimla Apartment Chs Ltd. vs M.K. Builders and 7 Ors. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether there is sufficient cause to condone the delay in filing the written statement and the present application by Defendant no.6 (delay of about twelve days from the Prothonotary & Senior Master's order and of about four months from receipt of the writ of summons). +1 more

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Court's answer

The delay was neither intentional nor deliberate; the explanation (office bearers handing papers to the Advocate without the writ of sums, leaving the impression it was yet to be served) was plausible, and with no serious objection from the Plaintiffs there was sufficient cause for the delay.

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Ratio / Principle

The order dated 27 February 2024 of the Prothonotary & Senior Master was set aside, the delay in filing the written statement was condoned and the Registry was directed to accept the written statement.

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Detailed headnote1 paragraphs

Condonation of delay in filing written statement — Bombay High Court, Ordinary Original Civil Jurisdiction (Abhay Ahuja, J.), 13 February 2025, Interim Application No. 380 of 2025 in Suit No. 237 of 2023: Defendant no.6 (Vimla Apartment CHS Ltd.), a cooperative housing society, sought setting aside of the Prothonotary & Senior Master's order dated 27 February 2024 transferring the suit as against it to the list of undefended suits, condonation of delay, and acceptance of its written statement by the Registry. Although the writ of summons and plaint were served by registered post in June 2023, the writ of sums was not handed over to the society's Advocate, who therefore believed it unserved and discovered the 27 February 2024 order only in the third week of March 2024 via the Court's website. With the Plaintiffs raising no serious objection, the Court found the delay neither intentional nor deliberate, the explanation plausible, and sufficient cause made out. The Court set aside the P&SM order, condoned the delay, directed the Registry to accept the written statement, and ordered service of a copy on the Plaintiffs within one week. Application allowed and disposed accordingly.

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21-IA-380-2025.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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INTERIM APPLICATION NO. 380 OF 2025 IN

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SUIT NO. 237 OF 2023

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VIMLA APARTMENT CHS LTD. )…APPLICANT

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IN THE MATTER BETWEEN

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M. K. BUILDERS AND OTHERS )PLAINTIFFS

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V/s.

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TEJPAL ALIAS SANJAY JAY SINHA KAJARIA ) AND OTHERS )...DEFENDANTS

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Mr.Atul Singh, Advocate for the Applicant/Defendant no.6 in S/237/2023.

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Ms.Savita Sawalkar i/by M/s.Tamhane & Co., Advocate for the Plaintiffs and for the Applicant in IA/2566/2023.

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Mr.Vikramjit Garewal a/w. Mr.Sanjay Maji, Ms.Bijal Gandhi i/by DM Legal, Advocate for the Defendants no.2 to 5 and for the Applicants in IAL/2438/2025 and IAL/26332/2025.

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CORAM : ABHAY AHUJA, J. DATE : 13^th FEBRUARY 2025

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P.C. :

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This Interim Application seeks setting aside of the order dated

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27^th February 2024 passed by the Prothonotary & Senior Master and for condonation of delay in filing the written statement and for directions

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to the Registry to accept the written statement on behalf of the Defendant no.6.

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avk 1/5

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21-IA-380-2025.doc

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Mr.Atul Singh, learned Counsel, appears for the Applicant and submits that the Suit came to be filed by the Plaintiffs in March 2023 against various Defendants including the Applicant who is Defendant no.6 in the Suit. It is submitted that the Suit and the writ of summons as well as the plaint was served in June 2023 by registered post. That, after receipt of papers and proceedings the committee members of the Applicant – society prepared copies of the papers and appointed an Advocate to represent them. It is submitted that at the time of handing over the papers, the writ of summons remained to be handed over to the Advocate and therefore the Advocate remained under an impression that the Applicant had been served by the papers and proceedings privately and that the writ of summons was not served. It is submitted that through inadvertence the fact of receipt of writ of summons remained to be intimated to the Advocate.

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Mr.Singh would submit that the Suit came to be listed for directions for the first time before the Prothonotary & Senior Master on 27^th February 2024. However, since the Advocate was not aware that the writ of summons had already been received, he remained under an impression that the Prothonotary & Senior Master would issue directions for issuance and service of writ of summons upon the avk 2/5

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21-IA-380-2025.doc

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Defendants. It is submitted that on 27^th February, 2024, the Advocate was held up before another Court and therefore could not attend the hearing on 27^th February 2024 before the Prothonotary & Senior Master. That, somewhere in the third week of March 2024, the Advocate for the Applicant in the regular course of enquiry about his matters, checked the status of the Suit on the website of this Court and learnt about the order dated 27^th February 2024 of the Prothonotary & Senior Master and thereafter he immediately contacted the office bearers of the society and after searching the records available with the society, copy of writ of summons that was served upon the Applicant was found. It is submitted that, thereafter, instructions were given to the Advocate to prepare written statement and to take steps to file the same.

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Mr.Singh would submit that the written statement is ready for filing, however, due to order dated 27^th February 2024 of the Prothonotary & Senior Master transferring the Suit as against the Applicant to the list of undefended suits, the written statement cannot be filed unless this Court so orders. Mr.Singh submits that the delay in filing this application is due to inadvertence and is only of twelve days from the date of order of Prothonotary & Senior Master and from the date of receipt of writ of summons the delay is of about four months. avk 3/5

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Mr.Singh, accordingly, submits that since the Applicant is a cooperative housing society, in the interest of justice, the delay be condoned and the order of the Prothonotary & Senior Master be set aside, the delay be condoned and Registry be directed to accept the written statement.

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Ms.Savita Sawalkar, learned Counsel, appears for the Plaintiffs and submits to the orders of this Court.

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I have heard the learned Counsel and considered the submissions and I am of the view that the delay is neither intentional nor deliberate and the explanation given is plausible as it is quite possible that the office bearers of the society would have handed over the papers to the Advocate without the writ of summons leaving an impression in the mind of the Advocate that the writ of summons was yet to be served. There is no serious objection from the side of the Plaintiffs as well. As such, there is sufficient cause for the delay.

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Accordingly, the order dated 27^th February 2024 of the Prothonotary & Senior Master is set aside. The delay is hereby condoned. Registry to accept the written statement.

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avk 4/5

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