Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.2769/2019 in Sum. Suit No.4783/2011
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2769 OF 2019
CNR NO.: MHCC01-007626-2019
SUMMARY SUIT NO. 4783 OF 2011
(HIGH COURT SUMMARY SUIT NO. 2956 OF 2011)
Actis Technologies Private Limited ...Plaintiff
Versus
Atharva Educational Trust ...Defendant
Appearances:-
Advocate Ms. Prachi Shah for plaintiff.
Advocate Mr. Bhate for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 18th FEBRUARY, 2020.
ORAL ORDER
This Notice of Motion is filed to set aside No Cross Order and Ex-
parte decree passed against defendant.
2. Defendant has stated that Mr. Ramesh Deshpande, Ex-Registrar of
the defendant was attending the Court on behalf of defendant.
However, he could not keep tract of the matter due to administrative
duties and he was not aware about the transfer of the proceedings from
Court Room No.27 to Court Room No.14 and he could not keep in
touch with the defendant’s Advocate due to administrative duties. It is
further stated that thereafter, mother of Advocate of the defendant was
ill and Advocate of the defendant was also not attending the Court
regularly and lost track of the matter. It is further stated by defendant
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that now Mr. Ramesh Deshpande is not working with the defendant
since 30.04.2018 as he has left the job and while leaving the job he had
promised that he will fulfill the past commitments like attending the
Court. However, on 10th June, 2019 the said confidence reposed in Mr.
Ramesh Deshpande got shattered on receiving the copy of the Judgment
dated 02.04.2019 passed in Suit.
3. Plaintiff has filed reply to this Notice of Motion and stated that
the absence of defendant is consistent right from the beginning of the
suit and defendant deliberately playing hide and seek with the Court.
Plaintiff has further stated that despite enough opportunities is given
and a time span of more than one year passed, defendant did not
appear before the Court and this Notice of Motion is filed to prolong the
proceedings. Plaintiff has further stated that suit has taken period of 10
years and allowing this Notice of Motion will not only delay the
proceedings but start second round of trial. Defendant has stated that
the letter produced regarding K. Ram Prasad cannot be considered as
authentic authority letter. Plaintiff has stated that defendant’s
representative was not attending the matter regularly. Plaintiff has
further stated that defendant was keeping proper track of the
proceedings including the transfer to Court Room No.14, as the
defendant was present on 18.04.2018 which is recorded in the
roznama. Plaintiff has further stated that defendant being aware that
their Advocate is not attending the matter did not choose to bring other
Advocate on record by filing Vakalatnama but they deliberately
continued with the same. Plaintiff has further stated that he has
suffered loss due to the delay tactics of defendant since 10 years.
Plaintiff has further stated that defendant deliberately choose to stay
remain silent for 2-3 years to wait for the final order to be passed.
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Plaintiff prayed for rejection of the Notice of Motion.
4. Advocate for the plaintiff cited judgment of the Hon’ble High
Court in case of Minoo F. Mehta vs. Haresh Ratilal Vaghadia, 2015 SCC
OnLine Bom 7338, in which it is held that,
“TVC Sky Shop Ltd. (supra)
that defendant have to disclose his case on merits also for setting aside
the ex-parte decree and same thing is not done by the defendant in the
present proceeding. It is further held that,
“considering these facts and
law declared by the Apex Court as stated hereinabove, I am of the
opinion that defendant failed to make out any case for allowing this
Notice of Motion”. In the case in hand, defendant appeared in the
matter and he was given unconditional leave to defend the suit and
filed written statement also but failed to take cross-examination of
plaintiff when plaintiff lead the evidence. In the cited case, defendant
did not appear in the suit and suit proceeded ex-parte against
defendant. Hence, facts of the cited case and in hand are different.
Hence, this case law is not applicable to the case in hand.
5. Advocate for the plaintiff cited judgment of the Hon’ble Apex
Court in case of Salil Dutta vs. T.M. And M.C. Private Ltd., (1993) 2 SCC
185, in which it is held that,
“as we have mentioned hereinabove, this
was an on-going suit posted for final hearing after a lapse of seven
years of its institution. It was not a second appeal filed by a villager
residing away from the city, where the court is located. The defendant is
also not a rustic ignorant villager but a private limited company with its
head-office at Calcutta itself and managed by educated businessmen
who know where their interest lies. It is evident that when their
applications were not disposed of before taking up the suit for final
hearing they felt piqued and refused to appear before the court. May
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be, it was part of their delaying tactics as alleged by the plaintiff. May
be not. But one thing is clear - they chose to non-cooperate with the
court. Having adopted such a stand towards the court, the defendant
has no right to ask its indulgence. Putting the entire blame upon the
advocate and trying to make it out as if they were totally unaware of
the nature or significance of the proceedings is a theory which cannot
be accepted and ought not to have been accepted.” In the case in hand
there are no pending applications by defendant. Defendant have stated
that their representative and Advocate both did not keep track of the
matter. There are no sufficient circumstances to come to conclusion that
these were deliberate delaying tactics of defendant. Therefore, facts of
the case cited and in hand are different. Hence, this case law is not
applicable to the case in hand.
6. Advocate for the defendant referred judgment of the Hon’ble
High Court in case of Dwarka Cement Works Ltd. vs. Rajnesh Jain, 2000
Vol. 102(3) Bom. L.R. 22, Notice of Motion No.1531 of 2000 in Suit
No.614 of 1996, decided on 12.6.2000, in which it is held that,
“ in the
facts of this case no discretionary power of this Court can be exercised
in favour of a party who is grossly and wantonly indifferent negligent in
prosecuting the matter.” In the case in hand there are no sufficient
circumstances to come to conclusion that defendant was grossly and
wantonly negligent. Therefore, facts of case cited and in hand are
different. Hence, this case law is not applicable to the case in hand.
7. Advocate for the defendant cited judgment of the Hon’ble Patna
High Court in case of Vishwanath Jha vs. Deputy Director, Census and
others, 1998 SCC OnLine Pat 761, in which it is held that,
“the Court
below further found that it is because of the laches and negligence on
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the part of the Standing Counsel, the defendants were prevented from
taking steps and the suit was decreed ex parte. I do not find any reason
to differ with the finding of the court below. It is not the case where the
defendants deliberately did not appear or engage a counsel, rather from
the letters it appears that the defendants always remained in contact
with their counsel for taking appropriate steps in the suit but due to
inaction on the part of the counsel the defendants had to suffer with the
ex parte decree. In that view of the matter, I am of the opinion that for
the ends of justice it is not a fit case where this Court should interfere
with the order in exercise of its revisional jurisdiction”. In the case in
hand also defendant have contended that their Advocate did not keep
the track of the matter and their representative also did not keep the
track of the matter. Therefore, it appears that defendant’s non
appearance is not deliberate. Therefore, this case law is applicable to
the case in hand.
8. Advocate for the defendant cited judgment of the Hon’ble High
Court in case of Ashok Ravji Vadodriya and etc. vs. Municipal
Corporation of Greater Bombay, AIR 2004 Bombay 8, in which it is held
that, “
On the contrary, it is a duty of an advocate engaged for
conducting a cause on behalf of suitor to keep himself fully informed of
the proceedings in the Court and be present when his case is called out.
The litigant cannot be said to have any responsibility, legal and
otherwise, after having engaged the services of an advocate and
Vakalatnama is filed in his behalf, to attend the Court to take dates of
the proceedings and convey them to his advocate, whether Vakalatnama
sets out all the terms of the agreement between the advocate and his
client or it may be that it may not set out all such terms. It is not the job
of the client.” In the case in hand also defendant is a Trust and
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defendant have specifically contended that their Advocate did not keep
the track of the matter and their representative also did not keep the
track of the matter. Therefore, this case law is applicable to the case in
hand.
9. Advocate for the defendant cited judgment of the Hon’ble Apex
Court in case of Robin Thapa v. Rohit Dora, AIR 2019 SC 3225, Civil
Appeal No.1507 of 2019 (Arising out of SLP ( C) No.35428 of 2017),
D/-8-7-2019, in which it is held that,
“appellant has submitted that the
appellant is prepared to deposit the entire amount spent by the
respondent towards getting sale deed executed. We would think that
the interest of justice demands that subject to putting the appellant on
terms, an opportunity should be given to the appellant to contest the
case and the case must be directed to be disposed of within the time
limit”. In the case in hand also defendant is given unconditional leave
to defend the suit. Hence, it will be proper to give him opportunity to
fight case on merits by compensating plaintiff for the delay caused.
Hence, this case law is squarely applicable to the case in hand.
10. It appears Defendant is a Trust. Defendant Trust has specifically
contended that their representative Mr. Ramesh Deshpande left the job
since 30.04.2018 and he had promised that he will attend the Court
matter on their behalf. Defendant has further contended that their
Advocate did not keep the track of the matter. It appears defendant had
filed Written Statement. It appears no cross order is passed on
16.02.2019 and this Notice of Motion is filed in July 2019 i.e. within 6
months. From these circumstances it appears defendant wants to fight
the case on merits but their representative and Advocate both did not
fulfill their promises to keep the track of the matter. If the judgment and
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decree is set aside, definitely plaintiff is going to suffer as again the
matter will go back to the stage of cross-examination. Hence,
considering these circumstances, it will be proper to allow Notice of
Motion subject to cost to be given to plaintiff. Considering the fact that
suit is of the year 2011 and this is the Summary Suit, it will be proper to
grant application subject to cost of Rs. 10,000/-. Hence, following order.
ORDER
1. Notice of Motion No.2769 of 2019 is allowed subject to cost of
Rs.10,000/- to be given to plaintiff by defendant.
2. Notice of Motion No.2769 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 18.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 18.02.2020
Transcribed on : 18.02.2020
Signed on : 18.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.02.2020 At 05:41 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
18.02.2020
Judgment/Order signed by P.O. on 18.02.2020
Judgment/Order uploaded on 24.02.2020
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