Bombay High Court
YASMINA MOLOOBHOYversusJEANNIE JAMSHED MADAM AND ANR
- Decided
- Disposal
- DISPOSED OFF
Holding
The court condoned the 19‑day delay in filing the written statement, subject to payment of costs.
Summary
The applicant, Defendant No.2, filed an interim application seeking condonation of a 19‑day delay in filing her written statement beyond the statutory 90‑day period. The delay arose because the counsel missed a direction in the Prothonotary’s order to file within the period, and the written statement was only tendered after the deadline had passed. The plaintiff opposed the condonation, arguing that counsel’s oversight cannot excuse the delay. The court noted that while advocates must read court orders, jurisprudence holds that a litigant should not be shut out for a non‑inordinate delay, especially where no prejudice is shown. Relying on the Supreme Court’s decision in Bharat Kalra v. Raj Kishan Chabra, the court allowed the condonation on the condition of payment of costs. Consequently, the written statement was ordered to be accepted and served, and the interim application was allowed and disposed.
Issues considered
- Whether a delay of 19 days in filing a written statement beyond the 90‑day statutory period can be condoned.
- Whether the delay is inordinate and warrants denial of the written statement.
- Whether costs can be imposed as a remedy for the delay under Supreme Court precedent.
Subjects
- condonation of delay
- written statement
- Civil Procedure Code
- interim application
- costs
- Supreme Court precedent
Judgment
13. IA 3642-26 in S 383-25.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.3642 OF 2026
IN
SUIT NO. 383 OF 2025
Yasmina Moloobhoy ...Applicant
In the matter between
Sana Shiraz Moloobhoy ...Plaintiff
Vs.
Jeannie Jamshed Madan and Anr. ...Defendants
Mr. Farshaz R.Mirza i/b FZB & Associates for the Applicant/Defendant
No.2.
Mr. Alpesh Sharma i/b Keystone Partners for the Respondent/Plaintiff.
Mr. Tushar Cooper i/b Mulla & Mulla and CBC for the Defendnat No.1.
CORAM : ABHAY AHUJA, J.
DATE : 10th SEPTEMBER, 2026
P.C. :
1. This Interim Application seeks condonation of delay of 19 days
beyond the period of 90 days in filing the written statement.
2. When the matter is called out, Mr. Mirza, learned Counsel
appearing for the Applicant viz. the Defendant No.2, at the outset
submits that in paragraph-6 of the Application, there is a typographical
error as instead of 12th June, 2026, the date should be 20th April, 2026.
3. Let the amendments be carried out forthwith. Re-verification is
dispensed with.
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13. IA 3642-26 in S 383-25.doc
4. Mr. Mirza, learned Counsel appearing for the Applicant submits
that the delay of 19 days beyond the 90 days’ deadline has occurred, as
although the Applicant had affirmed her written statement on 8 th May,
2026 well before the 90 days deadline i.e. 10 th June, 2026, the same
was neither tendered nor filed as the Applicant was awaiting for the
matter to once again be listed before the Prothonotary & Senior Master,
at which time the written statement would have been tendered. It is
submitted that inadvertently the Defendant No.2 and her Advocate did
not notice the direction to file the written statement within the
statutory period contained in the order dated 24 th March, 2026 of the
Prothonotary & Senior Master.
5. Mr. Mirza submits that when the matter was listed on 20 th April,
2026 for direction, the board was adjourned to 15 th June, 2026.
Thereafter, on 15th June, 2026, when the matter was called out and the
Advocate for the Applicant tendered the written statement, the
Prothonotary & Senior Master refused to take the same on record as the
90 days’ period from the service of the writ of summons was over. Mr.
Mirza submits that this is despite the fact that the written statement of
the Defendant No. 2 was affirmed, however, vide order dated 15 th June,
2026 it was recorded that no further extension of time could be
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13. IA 3642-26 in S 383-25.doc
granted.
6. It is submitted that the delay is neither intentional nor deliberate
and no loss or injury would be caused to the Plaintiff if the delay of 19
days is condoned, subject to reasonable terms.
7. On the other hand, Mr. Sharma, learned Counsel appearing for
the Plaintiff leaves it to the orders of the Court.
8. Although the explanation that the Advocate did not notice the
direction in the order of the Prothonotary & Senior Master dated 24 th
March, 2026 to file the written statement within the statutory period,
cannot be accepted as that is the role of the Advocate to read the orders
of the Registry and the Court before advising the clients, however, it is
also settled law that a litigant cannot be shut out on the ground of
delay which is not inordinate.
9. This Court is therefore, inclined to allow this Application, but
subject to payment of costs as the Hon’ble Supreme Court has observed
in the case of Bharat Kalra Vs. Raj Kishan Chabra1, that where delay
can be compensated by costs, it would not be reasonable to deny an
application seeking the condonation of delay in filing the written
statement.
1 2022 SCC Online SC 613.
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13. IA 3642-26 in S 383-25.doc
10. Accordingly, subject to payment of costs of Rs. 10,000/- to the
High Court Employees Medical Welfare Fund at Mumbai, within a
period of two weeks, the delay of 19 days, is hereby condoned.
11. Subject to the above, let the written statement be accepted by the
Registry and also be served upon the Plaintiff.
12. The Interim Application to accordingly stand allowed and
disposed as above.
(ABHAY AHUJA, J.)
Digitally
signed by
NIKITA
NIKITA YOGESH
YOGESH GADGIL
GADGIL Date:
2026.09.11
13:13:55
+0530
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