JUDGMENT

1. This Writ Petition is filed by Original Defendants challenging the judgment and order dtd. 18/6/2008 passed by the City Civil Court, Mumbai, thereby refusing to condone the delay of 31 months and 16 days, in filing the Written Statement.

2. The learned Judge of the City Civil Court, Bombay heard both the sides and on the basis of argument advanced by both the sides dismissed the delay condonation Application by order dtd. 18/6/2008. The impugned order has been challenged by the Defendants by way of the present Writ Petition.

3. 'Rule' was issued in the present Writ Petition. However, nobody has filed appearance on behalf of Respondent No. 2. On the last date of hearing and today, nobody appeared for Respondent No.2. Therefore, without any assistance of Respondent No.2, the submission of Petitioners' Advocate was heard.

4. It is the case of the Defendant that suit was filed by Plaintiff (Borrower). The Plaintiff after filing of the suit preferred an Interim Application in the form of Notice of Motion No. 3909 of 2007. It is the case of the Petitioners that in the said suit Writ of Summons was served on Defendant No.1 on 23/12/2004 and Defendant No.2 on 28/12/2004. As per the contents of the Writ of Summons, Defendant accepted to file their written statement by 17/1/2005. However, as per the Petitioners even though the written statement was affirmed on 17/1/2005 the same could not be tendered in the court, as the Notice of Motion filed by the Plaintiff was pending for hearing and disposal.

5. The Petitioners state that Notice of Motion was ultimately disposed off on 2/11/2007. Immediately thereafter the Petitioners (Original Defendants) made effort to tender the written statement in the court, as per the practice followed in City Civil Court at Bombay. However, according to the Petitioners, the court refused to accept the written statement as there was objection by the Plaintiffs, since the time limit according to the Plaintiff for filing the written statement was 30 days, and the same had expired long back. The Advocate for the Petitioners state that even today there is caption on the board of City Civil Court, Bombay "for filing of written statement".

6. Hence, the Defendants / Petitioners had no option but to file Notice of Motion to condone the delay in lodging / tendering the written statement. The original written statement was also enclosed to the Affidavit in support of Notice of Motion.

7. The City Civil Court, Bombay, without considering the correct position of law, rejected the delay condonation Application. Hence, the impugned order should be quashed and set aside, in the interest of justice.

8. To Buttress his submissions, the Advocate for the Petitioners also referred to three judgments on the same issue viz. 1) Kailash vs. Nanhku and Ors., reported in (2005) 4 SCC 480, 2) Zolba vs. Keshao and Others reported in (2008) 11 Supreme Court cases page 769 and 3) Raj Process Equipments Systems Pvt. Ltd. and Ors. vs. Honest Derivatives Pvt. Ltd. reported in Civil Appeal No. 8089 of 2022.

9. I have heard the Advocate for Petitioners and after going through the documents on record it can be seen that written statement in fact was affirmed within 30 days of service of writ of summons and as per the case of Petitioner (Original Defendant) the same could not be tendered in court, as the practice followed in City Civil Court, Bombay is that only when the matter is on board, the documents are tendered across the bar.

10. The City Civil Court, Bombay, rejected the delay condonation Application, relying upon the judgment of Salem Advocate Bar Association vs. Union of India, (2005) 6 SCC 344.

However, the Judge of City Civil Court, Bombay, failed to take into consideration paragraph No.20 and 21 of the Salem (Supra) judgment, the same are reproduced below:

"20. The use of the word 'shall' in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object whi