Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No.1296/18
in Summary Suit No.295/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS No.1296 of 2018
(CNR NO. MH CC010090682018)
In
SUMMARY SUIT NO.295 OF 2018
Thomson Reuters India Private Limited
A Company incorporated under the
provisions of the Companies Act, 1956
and having its Corporate office at
12th Floor, Tower 1C, One India Bulls
Center, Senapati Bapat Marg,
Elphinstone Road, Lower Parel,
Mumbai400 013, Maharashtra, India ....Plaintiff
V/s.
Somayajulu & Co. Limited
A Company incorporated under the
Provisions of the Companies Act, 1956,
having its registered office at:
Mookambika Complex, II nd Floor, A No.4,
Desikachari Road, Mylapore,
Chennai 600 004 Tamil Nadu,
and Corporate Office at:
A Wing, 2 nd Floor, R Jhamb Business Center,
Best Commercial Complex, Andheri Station,
Road, Andheri (W), Mumbai 400 058 ....Defendant
Appearance:
Mrs. Charushila More, Advocate for the Plaintiff.
Mr. K.S. Tripathi, Advocate for the defendant
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.40)
DATE : 18 th October, 2019.
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in Summary Suit No.295/2018
ORDER
1. This Chamber Summons is taken out by defendant Company
for condonation of delay of 116 days and to grant permission to enter
their appearance in the suit.
2. Heard both the sides. Reply of plaintiff and ReJoinder of
the defendant to the said reply is on record. It is submitted on behalf of
defendant that the defendant's office is at Chennai and writ of summons
was served on 27.03.2018 by R.P.A.D. Since it was financial year
ending, the staff of defendant was busy in finalizing the accounts.
Verifying the case status by the person who was looking the legal matter
on behalf of defendant, it was noticed that the subsequent date of the
suit was fixed on 02.05.2018. As such there was summer vacation, the
defendant could not enter the appearance in the suit. Therefore, it is
submitted by the learned Advocate for the defendant that the delay in the
filing chamber summons may kindly be condoned.
Per contra, it is submitted by the learned Advocate for plaintiff that
chamber summons is silent on number of dates. If plaint is perused, it
can be seen that the office of defendant is situated at Mumbai also. The
defendant has not taken any steps for their appearance in the suit even
though their office is situated at Mumbai. Therefore, according to
learned Advocate of plaintiff, since no sufficient cause is shown for
condonation of delay, chamber summons be dismissed.
3. It is well settled that in considering the prayer of
condonation of delay liberal approach should adopted by the Court.
Duration of delay is insignificant. Primary function of the court is to
adjudicate dispute between the parties and to advance substantial
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in Summary Suit No.295/2018
justice. In the case in hand, the reason of financial year ending and
summer vacation prior to the filing the present chamber summons
appears to be sufficient cause in order to condone the delay of 116 days.
If the delay is condoned, no prejudice or harm will cause to the plaintiff
as the plaintiff has to base its claim on the basis of documents adduced
on record.
4. Learned Advocate for defendant relied on the observations
in the mater of Esha Bhattacharjee V/s. Managing Committee of
Raghunathpur Nafar Academy and Ors. reported in (2013) 12 SCC
649, wherein it is observed that :
The principals applicable to an application for condonation
of delay are as follows :
i) There should be a liberal, pragmatic, justiceoriented,
nonpedantic approach while dealing with an application
for condonation of delay, for the courts are not supposed to
legalise injustice but are obliged to remove injustice.
ii) The terms “sufficient cause” should be understood in
their proper spirit, philosophy and purpose regard being
had to the fact that these terms are basically elastic and
are to be applied in proper perspective to the obtaining
factsituation.
Iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue an
uncalled for emphasis.
iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
counsel or litigant is to be taken note of.
v) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief
because the courts are required to be vigilant so that in the
ultimate eventuate there is no real failure of justice.
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in Summary Suit No.295/2018
vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it can not be allowed a
totally unfettered free play.
viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former
doctroine of prejudice is attracted whereas to the latter it
may not be attracted. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
ix) The conduct, behavior and attitude of a party relating
to its inaction or negligence are relevant factors to be taken
into consideration. It is so as the fundamental principle is
that the courts are required to weigh the scale of balance of
justice in respect of both parties and the said principle can
not be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be
vigilant not to expose the other side unnecessarily to face
such a litigation.
xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
xiii) The state or a public body or an entity representing a
collective cause should be given some acceptable latitude.
xiv) An application for condonation of delay should be
drafted with careful concern and not in a haphazard
manner harbouring the notice that the courts are required
to condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice
dispensation system.
xv) though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
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in Summary Suit No.295/2018
the adjudicatory system should be made as that is the
ultimate institutional motto.
Xvii) The increasing tendency to perceive delay as a non
serious matter and, hence, lackadaiscial propensity can be
exhibited in a nonchalant manner requires to be curbed, of
course, within legal parameters.
In that case the appeal is allowed and the order passed by
the Hon'ble Division Bench for condoning the delay is set aside on the
ground that the persons who are Members or chosen as Secretaries of
Managing Committee can not take recourse to fancy and rise like a
phoenix and move the Court. In the case in hand, the defendant has
made out sufficient cause in order to condone the delay in filing chamber
summons and entering appearance in the suit on the basis of averments
made in the affidavit in support of the chamber summons. Therefore, the
principles in the cited case law are applicable to the case in hand.
5. In view of forgoing discussion, since there is no inordinate
delay, the prayers in chamber summons needs favourable consideration
to the extent of condonation of delay and entering appearance of
defendant on record. However, for the delay caused on behalf of
defendant, plaintiff should be sufficiently compensated. Resultantly, I
pass following order.
ORDER
1) Chamber Summons No.1296/2018 is allowed.
2) The delay caused in filing chamber summons is condoned subject
to cost of Rs.5,000/ (Rs. Five Thousand Only) to the plaintiff to be
paid on or before the next date.
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in Summary Suit No.295/2018
3) After compliance, the vakaltnama of defendant be taken on
record.
4) Chamber Summons No.1296/2018, is disposed off accordingly.
(Jayshri R. Pulate)
Adhoc Judge
City Civil Court,
Gr. Bombay
Date : 18/10/2019
Dictated on : 18.10.2019
Transcribed on : 22.10.2019
Signed on : 24.10.2019
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in Summary Suit No.295/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.10.2019 4.40 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 18.10.2019
Order signed by P.O. on 24.10.2019
Order uploaded on 24.10.2019
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