Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.491 OF 2020
(CNR NO.MHCC010012362020)
IN
SUIT NO. 101623 OF 2014
M/s. Worldgate Express Lines ]
International Pvt. Ltd., ]
Branch Office at 7th Floor, ]
Sharad Terraces (Warden House), ]
Plot No.65, CBDBelapur, ]
Navi Mumbai. ].. Applicant(Plaintiff).
IN THE MATTER BETWEEN
M/s. Worldgate Express Lines ]
International Pvt. Ltd., ]
Branch Office at 7th Floor, ]
Sharad Terraces (Warden House), ]
Plot No.65, CBDBelapur, ]
Navi Mumbai. ]..Plaintiff.
V/s.
M/s. Breit Real Estate Pvt. Ltd., ]
Registered office at Ballard House, ]
Adi Marzban Path, Ballard Estate, ]
Mumbai 400 001. ]..Defendants.
Advocate Ms. Angha Tandel for the plaintiff.
Advocate Mr. Jal F. Daruwalla for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 11th OCTOBER 2021
ORDER
The Notice of Motion No. 491 of 2020 is taken out by the
plaintiff for restoration of Suit No. 1623 of 2014.
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2. It is the case of plaintiff that the suit was instituted for
recovery of Rs. 9,08,441/– out of the concluded leave and license
agreement dated 17/07/2009 and 01/03/2012 and other such
incidental reliefs and claims. The plaintiff had hired the premises of
defendant wide agreement dated 08/04/2009 and 17/07/2009. The
initial period was for 33 months. It got extended vide agreement dated
01/03/2012 till 31/10/2014. The original agreements are with
defendant and plaintiff has Xerox copies. Plaintiff was having good
relations with defendant and hence did not object for keeping the Xerox
copies with him.
3. It is the case of plaintiff that the affidavit of examination in
chief was filed on 26/08/2019 in the matter. However, plaintiff
company could not produce those documents in the original which were
in the custody of the defendant. Hence, the plaintiff company issued
notice to defendant on 17/09/2019 under Order 12 Rule 8 Of the Civil
Procedure Code for production of the original leave and license
agreements dated 17/07/2009 and 01/03/2012. However, defendant
did not produce those documents before the court. The matter was
listed on 21/11/2019 for production of those documents. The
representative of plaintiff could not attend the court on 21/11/2019
due to some professional urgency. Therefore, the court dismissed the
suit holding that the compliance was on the part of plaintiff. On the
very day learned advocate for plaintiff filed an application for setting
aside the dismissal order and put all the relevant facts before this Court.
No order is passed on that application. In the circumstances, the
plaintiff has prayed that the delay for filing the present motion may be
condoned and the suit may be restored to its original stage.
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4. The defendant has objected the application by filing say. It
is stated that the suit was dismissed on 21/11/2019, whereas the
present Notice of Motion is taken out on 24/01/2020 and hence, it is
barred by limitation. It is further stated that the suit was originally
adjourned to 09/12/2019, but at the request of learned advocate for
plaintiff it was preponed. Therefore, there was no reason for plaintiff
and his learned advocate not to appear before the court. The suit was
dismissed in the presence of learned advocate for plaintiff. Therefore,
plaintiff cannot file such application. For all these reasons, the
defendant has prayed for dismissal of the Notice of Motion.
5. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to get the
suit restored to its original stage ?
In the
Affirmative
2 Whether plaintiff is entitled to get the delay
if any condoned for filing the present Notice
of Motion ?
In the
Negative
3 What Order ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3:
6. I have gone through the record and proceeding. I have
heard both learned advocates at length. It appears from record that the
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suit was put in the dismissal caption on 14/06/2019. It was removed
from dismissal caption on 16/07/2019 at the request of learned
advocate for plaintiff. So far as giving notice to the defendant by
plaintiff for production of original documents is concerned, there is
nothing on record of the court.
7. The record further shows that the affidavit of examination
in chief of the plaintiff was filed on record but it is not mentioned in the
Roznama. It is also important to note that on 21/11/2019 when the
suit came to be dismissed, the plaintiff filed an application for
restoration of the suit which is also appearing on the record of the court
but was not taken in the Roznama. It was kept for the order but in fact
no order came to be passed on that application till date.
8. In the above circumstances it is clear that the plaintiff had
filed affidavit of examination in chief in the court. On the date of
dismissal, plaintiff was present before the court through its advocate.
After dismissal of the suit, plaintiff filed application for restoration on
the very day. This conduct of plaintiff clearly shows that plaintiff was
diligent in conducting the matter. As no order was passed on the
application of plaintiff, he was constrained to take up this Notice of
Motion. As the application was filed on the very day for restoration, it
cannot be said that the Notice of Motion is barred by limitation. It is
also important to note the submissions of learned advocate for plaintiff
that on the date of hearing fixed by this court, the defendant was
supposed to produce the original documents in his possession. The
Roznama does not disclose any such stage.
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9. Learned advocate for defendant relied upon judgement in
the case of Balwant Sing Vs Jagdish Sing and Others reported in
(2010) 8 Supreme Court Cases 685. It is held that,
32. It must be kept in mind that whenever a law is
enacted by the legislature, it is intended to be enforced
in its proper perspective. It is an equally settled
principle of law that the provisions of a statute,
including every word, have to be given full effect,
keeping the legislative intent in mind, in order to
ensure that the projected object is achieved. In other
words, no provisions can be treated to have been
enacted purposelessly.
33. Furthermore, it is also a wellsettled canon of
interpretative jurisprudence that the Court should not
give such an interpretation to the provisions which
would render the provision ineffective or odious. Once
the legislature has enacted the provisions of Order 22,
with particular reference to Rule 9, and the provisions
of the Limitation Act are applied to the entertainment
of such an application, all these provisions have to be
given their true and correct meaning and must be
applied wherever called for. If we accept the
contention of the learned counsel appearing for the
applicant that the Court should take a very liberal
approach and interpret these provisions (Order 22
Rule 9 CPC and Section 5 of the Limitation Act) in
such a manner and so liberally, irrespective of the
period of delay, it would amount to practically
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rendering all these provisions redundant and
inoperative. Such approach or interpretation would
hardly be permissible in law.
10. Learned advocate for defendant further relied upon
judgement in the case of Maniben Devraj Shah v. Municipal Corpn. of
Brihan Mumbai reported in (2012) 5 SCC 157. It is held that,
23. What needs to be emphasised is that even though
a liberal and justiceoriented approach is required to
be adopted in the exercise of power under Section 5 of
the Limitation Act and other similar statutes, the
courts can neither become oblivious of the fact that
the successful litigant has acquired certain rights on
the basis of the judgment under challenge and a lot of
time is consumed at various stages of litigation apart
from the cost.
24. What colour the expression “sufficient cause”
would get in the factual matrix of a given case would
largely depend on bona fide nature of the
explanation. If the court finds that there has been no
negligence on the part of the applicant and the cause
shown for the delay does not lack bona fides, then it
may condone the delay. If, on the other hand, the
explanation given by the applicant is found to be
concocted or he is thoroughly negligent in prosecuting
his cause, then it would be a legitimate exercise of
discretion not to condone the delay.
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11. Learned advocate for defendant further relied upon
judgement in the case of Esha Bhattacharjee v. Raghunathpur Nafar
Academy reported in (2013) 12 SCC 649. It is held that,
“11. … The law of limitation fixes a lifespan for such
legal remedy for the redress of the legal injury so
suffered. Time is precious and wasted time would never
revisit. During the efflux of time, newer causes would
sprout up necessitating newer persons to seek legal
remedy by approaching the courts. So a lifespan must
be fixed for each remedy. Unending period for launching
the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus
founded on public policy. It is enshrined in the maxim
interest reipublicae ut sit finis litium (it is for the
general welfare that a period be put to litigation). Rules
of limitation are not meant to destroy the rights of the
parties. They are meant to see that parties do not resort
to dilatory tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.”
12. Advocate for plaintiff further relied upon judgement in the
case of Basawaraj v. Land Acquisition Officer reported in (2013) 14
SCC 81. It is held on the point of limitation that,
15. The law on the issue can be summarised to the
effect that where a case has been presented in the court
beyond limitation, the applicant has to explain the
court as to what was the “sufficient cause” which
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means an adequate and enough reason which
prevented him to approach the court within limitation.
In case a party is found to be negligent, or for want of
bona fide on his part in the facts and circumstances of
the case, or found to have not acted diligently or
remained inactive, there cannot be a justified ground to
condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any
condition whatsoever. The application is to be decided
only within the parameters laid down by this Court in
regard to the condonation of delay. In case there was
no sufficient cause to prevent a litigant to approach the
court on time condoning the delay without any
justification, putting any condition whatsoever,
amounts to passing an order in violation of the
statutory provisions and it tantamounts to showing
utter disregard to the legislature.
13. Learned advocate for defendant relied upon judgement in
the case of Rajendra Namdeorao Akre v. Rajkumar Bhalerao
Balbudhe, 2015 SCC OnLine Bom 6001.
14. Learned advocate for defendant further relied upon
judgement in the case of Nandkishors/o Damodar Wadgaonkar and
Anr. v. Gajanan s/o Uttamrao Pede reported in 2013 SCC OnLine
Bom 1031. It is held that,
13. In another authoritative pronouncement in a case
of Lanka Venkateswarlu (dead) by LRs. v. State of A.P.,
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reported in 2011 (4) Mh.LJ. 104, the Hon'ble Supreme
Court held that, Court do not enjoy unlimited and
unbridled discretionary powers and discretion has to be
exercised in a systematic manner informed by reason.
The Hon'ble Supreme Court in para No. 26 of the said
judgment held that:
26. We are at a loss to fathom any logic or
rationale, which could have impelled the High
Court to condone the delay after holding the
same to be unjustifiable. The concepts such as
“liberal approach”,“justice oriented approach”,
“substantial justice” cannot be employed to
jettison the substantial law of limitation.
Especially, in cases where the Court concludes
that there is no justification for the delay. In our
opinion, the approach adopted by the High
Court tends to show the absence of judicial
balance and restraint, which a Judge is required
to maintain whilst adjudicating any lis between
the parties. We are rather pained to notice that
in this case, not being satisfied with the use of
mere intemperate language, the High Court
resorted to blatant sarcasms. The use of unduly
strong intemperate or extravagant language in a
judgment has been repeatedly disapproved by
this Court in a No. of cases. Whilst considering
applications for condonation of delay under
section 5 of the Limitation Act, the Courts do not
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enjoy unlimited and unbridled discretionary
powers. All discretionary powers, especially
judicial powers, have to be exercised within
reasonable bounds, known to the law. The
discretion has to be exercised in a systematic
manner informed by reason. Whims or fancies;
prejudices or predilections cannot and should
not form the basis of exercising discretionary
powers.”
In another authoritative pronouncement of the Hon'ble
Supreme Court in a case of P.K. Ramachandran v.
State of Kerala, reported in (1997) 7 SCC 556, held
thus:
“Law of limitation may harshly effect a
particular party but it has to be applied with all
its rigour when the statute so prescribe and the
Courts have no power to extend the period of
limitation on equitable grounds. The discretion
exercised by the High Court was, thus, neither
proper nor judicious. The order condoning the
delay cannot be sustained. This appeal, therefore,
succeeds and the impugned order is set aside.
Consequently, the application for condonation of
delay filed in the High Court would stand
rejected and the Miscellaneous First Appeal shall
stand dismissed as barred by time. No costs.”
15. I have gone through all the above ratios laid down by the
Hon'ble Lordships. In the present matter, the facts are quite different.
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The plaintiff had filed application for restoration of the suit on the very
day on which the suit came to be dismissed. This fact changes all the
complexions of the matter. Admittedly, this notice of motion is filed by
the plaintiff beyond the period of limitation which is given for the
restoration of the suit. However, in my considered opinion this notice
of motion is just an extension of the application filed by plaintiff on the
record of the court on the same day when the suit came to be dismissed.
Therefore, actually there is no delay in filing a motion for restoration of
the suit to its original stage. In view of this observation, with all respect
to all the ratio on which reliance is placed by the plaintiff, I state that
they are not applicable to the present matter as the facts are entirely
different. There is no question of exercising the discretionary power by
the court in the present matter.
16. In view of all above discussion, I have come to the
conclusion that the plaintiff is entitled for restoration of the suit. There
is no delay at all. Hence I answer point No.1 in the affirmative and
point No. 2 in the negative and in answer to point No. 3, I proceed to
pass following order.
O R D E R
1. Notice of Motion No.491 of 2020 is hereby allowed.
2. Suit No. 1623 of 2014 is restored to its original stage.
3. Notice of Motion 491 of 2020 is disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 11.10.2021 Gr.Mumbai.
Dictated on : 11.10.2021
Typed on : 21.10.2021
Signed on : 21.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22.10.2021 AT 10.15 A.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
11/10/2021
Judgment/Order signed by P.O. on 21/10/2021
Judgment/Order uploaded on 22/10/2021
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