Hon'ble Judges/Coram:
N.J. Jamadar

JUDGMENT

N.J. Jamadar, J.

1. Rule. Rule made returnable forthwith and, with the consent of the Counsels for the parties, heard finally.

2. This petition under Article 227 of Constitution of India takes exception to an order dated 17th January, 2018, passed by the learned Judge, City Civil Court, Bombay, in Notice of Motion No. 71 of 2017 in Suit No. 7057 of 2005, whereby the learned Judge allowed the Notice of Motion and permitted the defendant-respondent to file written statement dated 24th March, 2015, by condoning the delay of 9 years and 79 days, subject to payment of costs of Rs. 15,000/- by the defendant to the plaintiff-petitioner.

3. The petition arises in the backdrop of the following facts:

(a) Initially, the petitioner-plaintiff had instituted a suit in this Court for recovery of a sum of Rs. 21,00,000/-, allegedly paid towards part consideration for purchase of the fat bearing nos. 408/409, ABC Building, Manish Park, Andheri (East), Mumbai, which the defendant had agreed to sell for a consideration of Rs. 40,00,000/-. The plaintiff averred that after the payment of the said amount of Rs. 21,00,000/-, it was realised that the defendant was not the absolute and full owner of the said fat and had induced plaintiff to part with money by making false representation. Hence, the plaintiff had lodged a complaint against the defendant and also sought the refund of the amount by instituting the said suit. The suit was dismissed in default by an order dated 28th January, 2008. It came to be restored in pursuance of an order dated 4th February, 2011, passed in Notice of Motion No. 584 of 2009. Thereafter, the suit came to be transferred to the City Civil Court, Bombay.

(b) On 24th March, 2015, the defendant professed to tender written statement. By an order dated 12th November, 2016 the learned Judge noted that the written statement sought to be tendered by the defendant cannot be taken on record as it was filed without following due procedure of law. Thus, the defendant took out Notice of Motion No. 71 of 2017 and prayed for condonation of delay of about 9 years and 79 days in filing the written statement and permission to file the written statement (already tendered by the defendant on 24th March, 2015). In the Affidavit in support of the Notice of Motion, it was inter alia averred that on account of the health issues of the father, wife and the defendant himself, as well as other familial commitments the defendant could not file the written statement earlier. The defendant claimed to have learnt about the transfer of the suit to the City Civil Court in the year 2014 only. The defendant further claimed that since he was under bona fide impression that till the time he was not served with a copy of writ of summons, he was not required to file the written statement. As the defendant claimed to have a very good defence on merits, permission to file the written statement by condoning the delay was sought.

(c) The plaintiff resisted the prayer in the Notice of Motion. It was contended that there was not only inordinate (9 years 79 days) but also unexplained delay. The reasons assigned for not filing the written statement were unworthy of acceptance. Since the defendant had appeared before the Court, the ground of carrying an incorrect impression about there being no necessity of filing written statement till the writ of summons was served by the plaintiff, was stated to be flimsy.

(d) The learned Judge, upon consideration of the averments in the Affidavit and reply thereto, the material on record and submissions canvassed across the bar, was persuaded to allow the Notice of Motion by the impugned order. The learned Judge was of the view that the ground put-forth by the defendant that on account of familial commitments he could not file the written statement, well in ........