Final Order 1

Order Details: COPY OF ORDER
Pdf Text: MISC DJ 3/2024 (Main Case No. OMP (COMM) 242/2019)
New Delhi Municipal Council Vs. M/s Raj Builders
04.01.2024
Present: Sh. Nilesh Sawheny, Ld. Counsel for the
applicant/petitioner.
Sh. Vivekanand, Ld. Counsel for the non
applicant/respondent through video conferencing.
This is an application under Order 9 Rule 9 read with
Section 151 CPC for recall of order dated 16.09.2023 and for
restoration of the petition bearing OMP (COMM) 242/2019.
Ld. Counsel for the applicant/petitioner submits that there
was other Lawyer who was pursuing the matter but he did not diligently
pursue the matter before the court and accordingly, he has been
depaneled by the applicant/petitioner. He further submits that it was a
communication gap between the Lawyer and the department which led
to the fact that the matter could not be pursued diligently and the matter
has not been represented by the Lawyer on different occasions, as
detailed in the order sheets. He further submits that the nonpursuing
the matter before the court was neither intentional nor deliberate but
due to the reasons mentioned above. He further submits that in case the
petition is not restored, it will cause grave prejudice to the legal rights
of the applicant/petitioner. He therefore, prays for recall of order dated
16.09.2023 and for restoration of the petition.
No reply to the application filed by the non
applicant/respondent. Ld. Counsel for the nonapplicant/respondent
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however, submits that seeing the conduct of the applicant/petitioner, the
application does not deserve to be allowed. He further submits that this
is a Commercial Court and the way, the applicant/petitioner is pursuing
the petition, shows the lackadaisical attitude of the applicant/petitioner.
He however, submits that he leaves to the discretion of the court.
I have heard Ld. Counsels for the parties and perused the
record.
Perusal of the record shows that predominately on various
occasions, the applicant/petitioner was not present and in the interest of
justice, the matter was adjournments to other dates and seeing the
conduct of the applicant/petitioner, the way, the applicant/petitioner was
pursuing the present matter, the court vide order dated 28.01.2023
directed Chief Law Officer of NDMC to appear in person however,
despite this, thereafter, the applicant/petitioner also did not appear
which led to this court to pass order dated 16.09.2023 vide which the
court dismissed in default the petition of the applicant/petitioner.
Though the conduct and the lackadaisical approach of the
applicant/petitioner do not call for any interference in order dated
16.09.2023 however, keeping in view that the applicant/petitioner is a
statutory body and also the court is guided by the principles of natural
justice. The cardinal principle of ‘Audi alteram partum’ which is an
essential rule of principles of natural justice is germane to the matter.
‘Hear the other side’ or ‘that no one should be condemned unheard’ is
the basic postulate of cannons of justice. Right of hearing is not just a
procedural formality, but an inalienable substantive right. The same
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cannot be dispensed with under any circumstance. Considering the facts
and circumstances of the matter, the nonapplicant/respondent can be
compensated in terms of money for causing such delay caused by the
applicant/petitioner.
Accordingly, the instant application filed on behalf of the
applicant/petitioner is allowed subject to cost of Rs.30,000/ to be paid
by the applicant/petitioner to the nonapplicant/respondent and order
dated 16.09.2023 is recalled. Petition is restored to its original number
and position. Application stands disposed off. Application file be
tagged with the main case file.
It is stated by the Ld. Counsels for the parties that arbitral
record has already been received.
Put up this matter for arguments, on 28.02.2024.
(Anurag Sain)
District Judge (Commercial Court01),
Patiala House Courts Complex,
New Delhi/04.01.2024
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