Bombay High Court
Sap India Private Limited vs Cox And Kings Limited on 26 November, 2018
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
pvr 1 2-carap61-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION APPLICATION NO.61 OF 2018
SAP India Pvt.Ltd. ... Petitioner
Vs.
Cox & Kings Limited. .. Respondent
with
CHOL no.1141 of 2018
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Mr.Navroz Seervai, Senior Advocate with Mr.Ashish Kamat, Farhad
Sarabjee, Pratik Pawar, Ms.Shanaya Cyrus Irani, Siddhesh Pradhan I/b.
J.Sagar Associate, for the Applicant.
Mr.Rampal Singh Kohli with Sonia Redkar I/b. C.K.Legal Advocates &
Consultants, for the Respondent.
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CORAM : G.S. KULKARNI, J.
DATE: 26th November, 2018. P.C.:
1. Today the matter is placed on board on a praecipe/letter as moved by "C.K.Legal Advocates and Consultants" advocates for the respondent. It is unusual and a detailed praecipe which in my opinion in the circumstances of the case, is a clear attempt on the part of the respondent to create an unwarranted record. It is surprising as also unfortunate that the same is being so pursued by the Respondents' advocates. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 :::
pvr 2 2-carap61-18.doc
2. This application under Section 11(6) of the Arbitration and Conciliation Act,1996 was earlier listed before the Court on earlier several occasions. The pleadings are complete inasmuch as three affidavits in reply/opposition are placed on record on behalf of the respondent notwithstanding the fact that the scope of inquiry is limited. On 27 September 2018 the application appeared for hearing, when the Court (R.D.Dhanuka, J.) passed the following order:-
"Remove from Board.
Not to be placed before Shri Justice R.D.Dhanuka."
3. Thereafter, this application was listed for hearing before this Court on 21 November 2018. Considering the vehement opposition on the part of the applicant for any further adjournment, as also considering the previous background a request for further adjournment as made on behalf of the respondent was rejected. The Court passed the following order:-
"Mr.Kohli appears on behalf of the respondent and seeks an adjournment.
2. Mr.Seerwai, learned Senior Counsel for the applicant, has seriously opposed the adjournment of this application and has also pointed out that in the past repeated attempts were made to seek adjournment.
3. The record clearly indicates that a reply affidavit has already been filed and the matter had appeared from time to time and it was adjourned. In the circumstances, the request of Mr.Kohli cannot be granted as no justifiable cause has been shown by Mr.Kohli to adjourn the hearing of this application.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 :::
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4. Only as an indulgence to enable Mr.Kohli to have further instructions, the matter is kept back to be heard at 4 p.m. At 04.00 p.m.
5. Heard the learned Counsel for the parties.
Closed for orders." (emphasis supplied)
4. Today's application of the respondent on the said praecipe is to seek clarification in regard to the following portion of the above order passed by the Court:-
"Heard the learned Counsel for the parties."
5. The contention as urged on behalf of the respondent in the praecipe is that the learned counsel for the respondent did not argue the matter and therefore, the order should not record that the respondents were heard when the Court proceeded to close the matter for orders.
6. On 21 November 2018, when this application was called out in the morning session Mr.Kohli had requested for an adjournment which it may be added was to engage a Senior Counsel, which was not accepted and was rejected. This apart from the fact that even in making a plea for adjournment, submissions on merits of the matter of a fraud being committed by the applicant were made. Thereafter at 4 p.m. when the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 ::: pvr 4 2-carap61-18.doc matter was taken up, extensive submissions were made by Mr.Seervai, learned Senior Counsel for the applicant on the merits of the application. The Court cannot accept that the learned Counsel for the respondent did not make any submissions on law and facts. Although Mr.Kohli submitted that he would not argue the matter. I do not delve on the issue whether it is permissible for an advocate to say that he would not argue the matter or of a consequence of any such submission. May it be, it was not a case that Mr.Kohli was not ready on the merits of the matter. Further Mr.Kohli did not urge anything which he intended to argue which was beyond three reply affidavits as placed on record on behalf of the respondent, out of which two are extensive affidavits, completely dealing with the case of the respondent. It was also not the case that Mr.Kohli wanted to argue any further case beyond the pleadings on record. Thus considering this overall situation, the Court on the background of the earlier adjournments considered it justified and appropriate not to adjourn the matter.
7. It is distressful, saddening as also very unfortunate that such praecipe/letter of the Advocates was moved with a sole intention of creating a record and to delay proceedings and protract and prolong adjudication of matters on such invalid grounds. Such practice ought to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 ::: pvr 5 2-carap61-18.doc be deprecated. What is more disturbing is that such a praecipe is moved after the matter is finally heard and closed for orders. The Court in its solemn path of dispensation of justice would not deter or get distracted and it would be the duty and obligations of the Court to reject such plea as made today, in the respondent's application. In the context of the Court dealing with situation of unwarranted and invalid adjournment applications, the law is well settled. The Supreme Court in "Gayathri Vs. M.Girish"1 the Supreme Court referring to the "virus" of adjournments and duty and obligation of the Court, observed thus:-
"10. In this context, we may profitable reproduce a passage from Shiv Cotex v. Tirgun Auto Plast (P) Ltd.,(2011) 9 SCC 678 wherein it has been stated that: (SCC p.682 para 15) "15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of a hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation."
The court has further laid down that: (SCC p.682, para 15) "15. ....It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further."
11. In Noor Mohammed v. Jethanand,(2013) 5 SCC 202 commenting on the delay caused due to dilatory tactics adopted by the parties, the Court was compelled to say: (SCC p.215, para28) "28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It 1 (2016)4 SCC 142 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 ::: pvr 6 2-carap61-18.doc provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."
And, again:- (SCC p.216, para 31) "31. Thus, from the aforesaid, it is clear as day that everyone involved in the system of dispensation of justice has to inspire the confidence of the common man in the effectiveness of the judicial system. Sustenance of faith has to be treated as spinal sans sympathy or indulgence. If someone considers the task to be Herculean, the same has to be performed with solemnity, for faith is the "elan vital"
of our system."
12. In the case at hand, it can indubitably be stated that the defendant-petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts.
13. In view of the aforesaid analysis, we decline to entertain the special leave petition and dismiss it with costs which is assessed at Rs.50,000/- (Rupees fifty thousand only). The costs shall be paid to the State Legal Services Authority, Karnataka. The said amount shall be deposited before the trial Court within eight weeks hence, which shall do the needful to transfer it to the State Legal Services Authority. If the amount is not deposited, the right of defence to examine its witnesses shall stand foreclosed."
8. In the circumstances, no clarification of the order is called for. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 :::
pvr 7 2-carap61-18.doc The praecipe is accordingly rejected, however considering the nature of the application and the time of the Court being wasted on such extraneous application, it would be necessary that cost is imposed on the respondent. Accordingly, the respondent is directed to deposit with the Maharashtra State Legal Services Authority cost of Rs.50,000/- within two weeks from today.
(G.S.Kulkarni, J.) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 08:40:19 :::