Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in N/M No. 2032 of 2019
in Disposed Suit No. 7278 of 1997
MHCC010056372019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2032 OF 2019.
CNR NO. : MHCC010056372019
IN
S.C. SUIT NO.7278 OF 1997.
(High Court Suit No. 2354 of 1997)
K.R. Steelunion Limited, ...Applicant
(Plaintiff)
In the matter between
K.R.Steelunion Limited. …Plaintiff.
V/s.
Hindustan Petroleum Corporation Limited. ...Defendant.
Appearance:
Adv. Mr. Ruturaj Rajendra Joshi for Plaintiff.
Adv. Mr. S.R.Page for Defendants.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 29th JUNE, 2022.
ORDER
Plaintiff has taken out this Notice of Motion to set aside
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Order in N/M No. 2032 of 2019
in Disposed Suit No. 7278 of 1997
order dated 07.01.2016, whereby suit No. 7278 of 1997 came to be
dismissed for want of prosecution, and for restoration of the said suit to
the files.
2. Plaintiff contends that suit was transferred from the
Hon'ble Bombay High Court to this Court and appeared on this Court's
board for the first time on 29.10.2012. Plaintiff had engaged Shri A. H.
Punwani as their advocate for filing the suit in the Hon'ble Bombay
High Court. Defendant had appeared and filed its written statement.
Plaintiff was in regular contact with its earlier advocate and used to
take updates about the progress in the suit. The earlier advocate of the
plaintiff had assured that he will attend the matter and he will contact
the plaintiff whenever its presence is necessary before the Court. The
plaintiff bonafidely believed and relied upon the said assurance of its
advocate.
3. Plaintiff further contends that since last several years, the
plaintiff tried to contact its earlier advocate. However, his office was
found closed. Finally, it sent letter dated on 03.08.2011 to its advocate
and requested to provide the status of the suit. However, the letter
returned back with remark 'unclaimed'. Plaintiff made inquiry about the
whereabouts of its advocate. The people in the vicinity informed that
advocate A.H. Punwani expired long back. Thereafter plaintiff
contacted its present advocate, in the second week of April 2019. He
disclosed that the suit was dismissed in default on 07.01.2016, as
earlier advocate of the plaintiff and plaintiff did not attend the suit
since filing thereof. The suit was under the caption of framing issues till
24.10.2015. Issues were framed on 24.10.2015 and thereafter on
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in Disposed Suit No. 7278 of 1997
07.01.2016 the suit was dismissed.
4. The plaintiff was unaware about the legal procedure and
formalities to be followed and it was completely dependent upon its
earlier advocate. Due to frequent changes in the Board of Directors and
as the officials deputed to follow up the suit with earlier advocate of
plaintiff left the employment, the plaintiff lost the track of the matter.
There was no deliberate or willful default on the part of the plaintiff.
This Notice of Motion is filed immediately after getting knowledge of
the dismissal of the suit. Delay is not deliberate and intentional.
Plaintiff has good case on merits. No prejudice will be caused to the
defendant, if suit is restored and decided on merits. However, if the
suit is not restored, great prejudice, loss and harm would be caused to
the plaintiff. Hence it is prayed that order of dismissal be set aside and
the suit be restored.
5. Defendant contested the Notice of Motion on the ground
that plaintiff has failed to provide the date of demise of its earlier
advocate. It failed to produce any documents to show what action was
taken by the plaintiff from the date of the filing of the suit, when the
suit was transferred to this Court and till 03.08.2018, when the plaintiff
for the first time addressed letter to its earlier advocate. Plaintiff and its
advocate remained absent. Therefore, suit is dismissed. There is no
merit in the plaintiff's claim that it was taking follow up in the matter
with earlier advocate. After return of letter dated 03.08.2018, plaintiff
engaged present advocate only in the second week of April 2019. No
explanation has been provided for this interim delay. Plaintiff is a
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in Disposed Suit No. 7278 of 1997
corporate entity. Hence, its claim that it was unaware of legal procedure
and formalities cannot be entertained. No facts have been placed on
record to establish delay in filing the Notice of Motion. Therefore,
Notice of Motion deserves to be dismissed with costs.
6. Heard Ld. Adv Paresh Madkaikar for the plaintiff and Ld.
Adv S. R. Page for the defendant.
7. Following points arise for my determination to which I record my
findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether order dated
07.01.2016 in disposed of Suit
No. 7278 of 1997 is liable to be
set aside and the suit deserves
to be restored to the files?
Yes
2. What order? Notice of Motion
is allowed, subject
to costs.
REASONS
As to Point No. 1 & 2:
8. Ld. Adv Madkaikar for the plaintiff submitted that the delay
was not intentional. Plaintiff was unaware about demise of its earlier
advocate and Notice of Motion is filed within limitation from the
knowledge of dismissal of the suit. He replied upon the Judgments of
Hon'ble Supreme Court in:
i) Daya Singh v/s. Gurdev Singh (Dead) by L.Rs & Ors.,
2010 DGLS (SC) 24;
ii) Peter Francies Conceicao & anr. V/s. Candolina
Conceicao (Smt.) & anr.,2016(6) Bom C.R.727(Panaji
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Branch);
iii) Ashok Ravji Vadodriya & Ors. V/s. Municipal
Corporation of Greater Bombay, 2003(4)Bom.C.R.28;
9. Per contra, Ld. Adv S. R. Page for defendant submitted that
nonattendance of the plaintiff in the suit since the date of filing of the
suit and since the suit was transferred to this Court shows that plaintiff
was not diligent. Letter is issued to earlier advocate on 3.08.2018.
However, Notice of Motion is filed in the year 2019. By acting
diligently, the plaintiff could have acquired knowledge of dismissal of
the suit or demise of its earlier advocate at earlier point of time. The
delay is not specified. Therefore, he submits that the Notice of Motion
is liable to be dismissed.
10. Perused the Notice of Motion, supporting affidavit and
affidavit in reply as well as record of the suit. The suit was initially filed
before the Hon'ble Bombay High Court in the year 1997. Thereafter it
came transferred to this Court and first date before this Court as per
roznama is 29.10.2012. In this Court, initially the suit was under the
caption of steps. Since 10.10.2013 the suit was under the caption of
framing of issues. Issues are framed on 08.01.2015. However, its
noting is reflected in roznama dated 24.10.2015. Since 01.10.2015, the
suit was under the caption of recording of evidence and ultimately on
07.01.2016 the suit came to be dismissed in default. Plaintiff tendered
draft Notice of Motion on 03.05.2019.
11. The above record further reflects that since the first date before
this Court, both parties and their advocates were consistently absent till
the date of dismissal of the suit. It can also be noted from the roznama
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that after transfer of the suit to this Court, notice of the transfer is not
issued to both parties.
12. The plaintiff contends that his earlier advocate was looking
after the matter and on assurance of his advocate, plaintiff did not
personally attend the matter. Therefore, plaintiff was unaware about
the proceeding of the suit and its dismissal. It is also contended that
earlier advocate demised and because of frequent changes in the Board
of Directors and officials, taking follow up with the advocate, the
plaintiff lost the track of the suit. In view of the facts that no notice of
transfer is issued to the parties, the above contentions of the plaintiff
are acceptable.
13. The copy of the letter dated 03.8.2018 issued to earlier
advocate of plaintiff is produced on record. Remark on envelope shows
that it is returned as 'unclaimed'. Plaintiff has made statement on oath
that after inquiry, it was revealed that earlier advocate expired and after
getting the knowledge of death of earlier advocate, it approached to the
present advocate in second week of April 2019. Thereafter, he got
knowledge of the dismissal of the suit. The above statements of the
plaintiff as well cannot disbelieved.
14. Though it is reflected that plaintiff failed to attend the
matter personally in view of the observations of the Hon'ble Bombay
High Court in the Judgment Ashok Ravji Vadodriya & Ors. V/s.
Municipal Corporation of Greater Bombay (Supra), it would not be
appropriate to hold that it is duty of litigant to attend Court and convey
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in Disposed Suit No. 7278 of 1997
adjourned date to his advocate. It is duty of the advocate engaged for
conducting case on behalf of suitor to keep himself fully informed of
proceedings in Court and be present when his case is called out.
Therefore, on the ground that the plaintiff was not diligent to attend the
matter, when it is specific case of the plaintiff that he relied upon
assurance given by his earlier advocate, it will not be appropriate deny
opportunity to plaintiff to prosecute the suit. This conduct of the
plaintiff and consequent delay in the proceeding can be compensated by
imposing costs upon the plaintiff.
15. The other authorities in Daya Singh v/s. Gurdev Singh
(Dead) by L.Rs & Ors. and Peter Francies Conceicao & anr. V/s.
Candolina Conceicao (Smt.) & anr., (Supra) relied upon by the Ld
Advocate for the plaintiff are on Art.58 of the Limitation Act and cannot
be made applicable to the present case.
16. In the above circumstances, in view of the fact that no
notice of transfer of the suit was issued to the parties, I am inclined to
allow the Notice of Motion, subject to costs. In a result, point No. 1 and
2 are answered in the affirmative and following order is passed:
ORDER
1. Notice of Motion No. 2032 of 2019 is allowed.
2. Order dated 07.01.2016 in Suit No. 7278 of 1997 is set
aside and suit is restored to the files subject to costs of Rs.
5,000/ (Rs. Five Thousand Only) to be deposited by the plaintiff
with DLSA, Mumbai.
3.. Plaintiff shall deposit the above costs within four weeks.
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4. After the compliance of above costs, the Suit No.7278 of
1997 be restored under its original caption.
5. Notice of Motion No. 2032 of 2019 is disposed of
accordingly.
(SHRI S.B.PAWAR )
Judge
Dt.:29/06/2022 City Civil Court, Gr. Mumbai
Declared on : 29.06.2022
Dictated on : 29.06.2022
Typed on : 29.06.2022
Checked & Signed on: 30.06.2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.07.2022 at 2.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 29.06.2022
Order signed by P.O. on 29.06.2022
order uploaded on 13.07.2022
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