Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 634 OF 2019
IN
S.C. SUIT NO. 7311 OF 1997
(HIGH COURT SUIT NO.2509 OF 1997)
Shri S.N. Kapoor (Somnath Kapoor) ]
Son of Shri Mangat Ram Kapoor. ].. Plaintiff.
V/s.
The Union of India & Anr. ]..Defendant.
And
Shri Sunil Somnath Kapoor Son of ]
Somnath Kappor, Since deceased. ]..Applicant.
Advocate Mr. C. N. Gole for the plaintiff.
Advocate Ms. Martina Sapkal for defendant No.2
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 25th FEBRUARY, 2022
ORDER
The Notice of Motion is taken out for condonation of delay
of 4 years and 4 months in filing the Notice of Motion and for setting
aside the order of dismissal of the suit dated 06/02/2014 and for
restoration of the suit to the original file and decide on merits. It is
further prayed that the present applicants may be allowed to insert their
names in the place of plaintiff.
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2. It is the case of applicants that their father Somnath
instituted a suit bearing No. 2509 of 1997 for the recovery of amount of
Rs. 7,32,392/– along with interest at the rate of 21% per annum from
the date of institution of the suit that its No. 2304 of 1987 before the
Delhi High Court. Hon’ble Delhi High Court held that it has no
pecuniary jurisdiction to try and decide the suit and hence the plaint
was returned to the original plaintiff which came to be presented before
Hon’ble Bombay High Court and registered as Suit No. 2509 of 1997.
3. It is the case of applicants that the said suit was expedited
by the Hon’ble Bombay High Court on 24/10/2002 on the application
of original plaintiff. Thereafter, due to the enhancement in pecuniary
jurisdiction of this Court, the said suit came to be transferred to this
court. The defendants failed to file written statement and hence, suit
proceeded for hearing without written statement. On 06/02/2014,
both the parties and their learned advocates were absent and plaintiff
failed to file evidence. Hence, the suit came to be dismissed under
order 9 rule 3 of the Code of Civil Procedure.
4. Learned advocate for original plaintiff filed a Notice of
Motion bearing No. 1687 of 2014 on 11/04/2014 for restoration of the
suit. However, learned advocate for original plaintiff was not keeping
well since the year 2014 to the year 2016 and occasionally attended the
matter personally. One M. K. Narayana Murthy was attending the
matter on his behalf. He could not attend the court on 08/10/2015 due
to the marriage in his family. On that day, the Notice of Motion came to
be dismissed.
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5. Original plaintiff executed a Power of Attorney in favour of
present applicant on 28/03/2014. Accordingly, present applicant took
out a Notice of Motion bearing No. 535 of 2016 for restoration of the
Notice of Motion No. 1687 of 2014. It is further stated that the original
plaintiff died on 18/08/2014 but the present applicant failed to inform
the said fact to his learned advocate. The applicant had stated that he
was not aware of the serious legal consequences of his omission to
inform his advocate about the death of his father. Learned advocate for
applicant informed during the second week of September 2018 that the
Notice of Motion No. 539 of 2016 is not maintainable as the restoration
of suit is not prayed in that motion. His learned advocate died in the
month of January 2018. Therefore, delay is caused in taking out the
present notice of motion.
6. The applicant has further stated that he will suffer great
irreparable loss, if the suit is not restored to its original stage.
7. Defendant has filed reply and contested the Motion on the
ground that plaintiff has not made out any valid reasons for not
attending the matter. Plaintiff was not diligent in attending the matter.
Plaintiff was aware of the dismissal of the Notice of Motion No. 1687 of
2014 in the month of October 2015 itself.
8. The present applicant has not stated any reason as to why
he did not pursue the matter from August 2014 to January 2018.
Plaintiff is intentionally adopting delay tactics. He is claiming sympathy
of the court. He has made vague statements in the affidavit deliberately.
It is further pointed out that the affidavit in support of the present
Notice of Motion was a notarized on 24/09/2018, but it came to be
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filed in the court in the month of January 2019. The applicant has
made false statements. The earlier Power of Attorney was not produced
on record deliberately by the plaintiff. For all the reasons the defendant
has prayed for dismissal of the Notice of Motion.
9. Both learned advocates have filed written submissions on
record.
10. Considering the Notice of Motion, reply, documents on
record and written 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 applicant has proved sufficient
cause/reasons for condonation of delay?
In the
Affirmative
2 Whether applicant is entitled to the
restoration of the suit?
In the
Affirmative
2 What order? As per final order
R E A S O N S
AS TO POINT NOS.1 AND 2 :
11. It appears that the suit came to be dismissed on
06/02/2014 and the Notice of Motion for restoration of the said suit
was taken out on 30/04/2014 bearing No. 1687 of 2014. The said
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Notice of Motion came to be dismissed for want of prosecution on
08/10/2015. Thereafter, one more Notice of Motion bearing No. 539 of
2016 was taken out for restoration of the earlier Notice of Motion No.
1687 of 2014 on 05/02/2016. That motion was not pressed by present
applicant on 27/02/2019. The present Notice of Motion was filed on
13/02/2019.
12. It is the case of plaintiff that he was Power of Attorney for
his father. His father died on 18/08/2014 when the Notice of Motion
for restoration bearing No. 1687 of 2014 was pending. His learned
advocate died in the month of January 2018. At that time, the Notice of
Motion No. 539 of 2016 was pending. It is necessary to note that after
the death of father of present applicant, the power of attorney executed
by him became infructuous. However, the present applicant did not
inform his advocate about the death of his father and did not seek the
amendment in the pending Notice of Motion for deleting the name of
his father and adding his name. It is stated by the present applicant that
he was not aware of the legal procedure and hence did not inform his
learned advocate about the death of his father. It is stated that it was
not an intentional act.
13. It is necessary to note that the first Notice of Motion was
taken out for restoration after more than 2 months of the dismissal of
the suit. The Notice of Motion for restoration of Notice of Motion No.
1687 of 2014 was taken out again after delay.
14. It is settled position that the plaintiff has to explain the
delay of each and every day. The present applicant has further stated
that his advocate was not feeling well and was attending the court
occasionally.
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15. The learned advocate for the plaintiff has relied upon the
judgment in the case of Durgadas Bajiraoji Mokhade V/s. Jayshri
Hemraj Agrawal reported in 2020(1) Bom.C.R. 388. In the matter
before His Lordship held that delay of 11 years was caused in filing
Appeal against ex-parte decree. In that matter, delay caused due to
prosecuting simultaneous remedy of setting aside ex-parte decree and
hence it was held as sufficient cause for condonation of delay.
16. The learned advocate for the plaintiff has further relied
upon the judgment in the case of Trilok Chand Saini V/s. The State and
others reported in AIR 2004 Rajasthan 18. It is held that length of delay
is no matter. Acceptability of explanation is only criterion.
17. The learned advocate for the plaintiff has further relied
upon the judgment in the case of N. Balakrishnan V/s. M.
Krishnamurthy reported in (1998)7S.C.C.123. In the matter before the
Hon’ble Lordship laid down guidelines explaining the word “sufficient
cause”. In paragraph No.9 of the said case, it is held that;
“9. It is axiomatic that condonation of delay is a matter of
discretion of the Court. Section 5 of the Limitation Act
does not say that such discretion can be exercised only if
the delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range
can be condoned as the explanation thereof is satisfactory.
Once the Court accepts the explanation as sufficient, it is
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the result of positive exercise of discretion was on wholly
untenable grounds or arbitrary or perverse. But it is a
different matter when the first court refuses to condone the
delay. In such cases, the superior Court would be free on
consider the cause shown for the delay afresh and it is open
to such superior court to come to its own finding even
untrammeled by the conclusion of the lower Court.”
18. The learned advocate for the plaintiff has relied upon the
Judgment in the case of Nandrya Akahtya Gavit and others V/s.
Prabatabai Koman Gavit(d) thr. L.Rs. & Anr. reported in 2021(3) ALL
MR 459. In that matter though it was found that reasons given for
condonation of delay were incorrect, it was held that as petitioners
were poor, illiterate tribals and if application is not allowed, it may
result in miscarriage of justice.
19. In reply, the learned advocate for the defendants has relied
upon the Judgment in the case of Chandrakant s/o Laxman Kulbhiyya
V/s. The State of Maharashtra and others Bombay High Court
(Aurangabad Bench) decided on 14.03.2014. The Hon’ble Lordship has
been pleased to explain as to what is the sufficient cause.
20. I have gone through all these judgments. In view of the
ratio laid down in the case of N. Balakrishnan V/s. M. Krishnamurthy
reported in (1998)7S.C.C.123 as referred above, and in the light of ratio
laid down in the case of Durgadas Bajiraoji Mokhade V/s. Jayshri
Hemraj Agrawal reported in 2020(1) Bom.C.R. 388 referred above, I
have to deal with the facts of the present matter.
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21. It appears that Notice of Motion No.539 of 2016 was taken
out after dismissal of original restoration of Notice of Motion No.1687
of 2014. Likewise when the plaintiff realized that there was no prayer
of restoration of suit in Notice of Motion No.539 of 2016, the plaintiff
not pressed the said Notice of Motion and before that the plaintiff has
filed the present Notice of Motion alongwith the prayer of condonation
of delay as well as restoration of the suit. It is also necessary to keep in
mind that the original plaintiff died in the year 2014. The plaintiff has
stated that due to his business commitment and due to his unawareness
of legal provisions, he did not inform the fact of death of his father to
his learned advocate. This contention is supported by the affidavit and I
found no reason to deny the same.
22. In the above circumstance, it clearly appears that the
plaintiff was diligent and he filed proceeding for restoration of the suit
in due course of time. So far as delay caused after dismissal of Notice of
Motion No.1687 of 2014 is concerned, the said delay can be
compensated by imposing costs.
23. The litigation is too old i.e. of the year 1987. When the
plaintiff is fighting for his claim since last almost 35 years, I do not find
it proper to throw away the suit on the technical ground like limitation.
On the other hand, it would be appropriate to give plaintiff one more
opportunity to present his side on merits by leading appropriate
evidence and at get his claim determined by the Court.
24. Therefore, I have come to the conclusion that the plaintiff
has made out sufficient cause for condonation of delay subject to the
payment of appropriate costs. The plaintiff is entitled for restoration of
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suit subject to the payment of appropriate costs. Therefore, I answer
Point Nos.1 and 2 in the affirmative. I proceed to pass the following
order:-
O R D E R
1. Notice of Motion No.634 of 2019 is allowed subject to
the payment of costs of Rs. 5,000/– to be paid by
Plaintiff/applicant to Defendants jointly.
2. At the request of the learned advocate for the
plaintiff/applicant, he may deposit costs in the Court
which the defendants may subsequently withdraw.
3. On payment of costs, Suit No.7311 of 1997 shall be
restored to its original stage.
4. The plaintiff is directed to serve the defendants after
restoration of the suit with fresh notice.
5. The plaintiff is directed to bear his own costs.
6. Notice of Motion No.634 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 25.02.2022 Gr.Mumbai.
Dictated on: 25.02.2022
Typed on : 25.02.2022
Signed on : 04.03.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.03.2022 AT 12.05 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
25.02.2022
Judgment/Order signed by P.O. on 04.03.2022
Judgment/Order uploaded on 04.03.2022
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