Bombay High Court
M/S. Cvs Infrastructure Pvt.Ltd vs M/S. Hazel Mercantile Ltd on 20 March, 2020
Author: N. J. Jamadar
Bench: N. J. Jamadar
NMCD1272-2019INCOMSS94-2014-.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION NO. 1272 OF 2019
IN
COMM SUMMARY SUIT NO. 94 OF 2014
CVS Infrastructure Pvt. Limited ...Applicant
In the matter between
CVS Infrastructure Pvt. Limited ...Plaintiff
Versus
Hazel Mercantile Limited ...Defendant
Ms. Suvarna Joshi, for the Plaintiff/Applicant.
Mr. Amey Patil, a/w Vivek M. Sharma, Shanay Bafna, i/b
Vivek Kantawalla & Co., for the Defendant.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 24th January, 2020 PRONOUNCED ON: 20th March, 2020 Order :
1. This notice of motion is taken out by the plaintiff for condonation of delay in seeking setting aside the order of dismissal, and also for restoration of the suit, dismissed for want of prosecution.
2. The background facts, necessary for determination of the instant motion, can be summarised as under:
(a) The applicant company deals in the business of trading in chemicals. It had placed order for supply of Methanol with the defendant company. The plaintiff had also made 1/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC advance payment. However, the defendant failed to deliver the chemicals. Hence, the plaintiff was constrained to institute the suit for the principal sum of Rs.1,56,11,111/- along with future interest.
(b) The suit was dismissed for want of prosecution on 22nd June, 2015. The plaintiff had taken out Notice of Motion No.1303 of 2015 for restoration of the suit. By an order dated 23rd December, 2015, the suit came to be restored subject to payment of costs of Rs.15,000/- by the plaintiff to the defendant. Post restoration, the suit was again dismissed for want of prosecution on 24th June, 2016. However, as the counsel for the plaintiff appeared in the second session on the same day, the order of dismissal was set aside and the suit came to be restored to fle. Lastly, on 21st March, 2018, the suit was again dismissed for want of prosecution as none appeared for the plaintiff nor summons for judgment was taken out within six months of lodging of the plaint.
(c) The plaintiff - applicant has taken out this notice of motion with the assertion that the matter was entrusted to Advocate Baliram Kamble. In the month of August 2018, when the plaintiff made enquiries with Advocate Kamble, the status of the suit could not be ascertained. In the month of October 2018, Advocate Kamble, took seriously ill. He did not attend the 2/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC Court. After Advocate Kamble recovered, the applicant collected the papers and proceedings and thereafter preferred this application for condoation of delay and setting aside the order dated 21st March, 2018, dismissing the suit for default in appearance and its restoration to fle.
3. An affdavit in reply is fled on behalf of the defendant. The defendant contends that there is no explanation much less reasonable for inordinate delay in taking out this notice of motion. The application suffers from delay and latches. The careless and callous conduct of the plaintiff in the matter of prosecution of the suit is evident from the fact that the suit came to be dismissed thrice for want of prosecution. The reason of illness of Advocate Kamble is of no assistance as Advocate Kamble allegedly took ill in the Month of October 2018, whereas the suit came to be dismissed for want of prosecution on 21 st March, 2018. No cause is assigned for non-appearance of either the plaintiff or the learned Counsel for the plaintiff on the day the suit came to be dismissed for want of prosecution. Thus, the notice of motion deserves to be rejected.
4. I have heard Ms. Joshi, the learned Counsel for the plaintiff and Mr. Patil, the learned Counsel for the defendant, at some length.
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NMCD1272-2019INCOMSS94-2014-.DOC
5. The learned Counsel for the plaintiff submitted that having regard to the fact that the learned Advocate for the plaintiff was unwell and, therefore, the suit could not be attended to when it was listed for hearing before the Court, constitutes a suffcient cause for the condonation of delay and also restoration of the suit. It was urged that a litigant should not be made to suffer for the inadvertence or inaction on the part of the Advocate. The learned Counsel further submitted that it is well recognised that an application for condonation of delay should receive liberal consideration as it is in the interest of public justice that a lis be determined on merits. Thus, according to the learned Counsel for the plaintiff though there is some lapse on the part of the plaintiff, the suit is required to be restored to fle by passing an appropriate order as to costs to take care of the inconvenience caused to the defendant.
6. As against this, the learned Counsel for the defendant submitted that the prayer for condonation of delay and restoration of the suit cannot be considered de hors the manner in which the suit has been prosecuted by the plaintiff. Laying emphasis on the successive orders of dismissal of the suit for default in appearance on the part of the plaintiff, the learned Counsel for the defendant would urge that instant case indicates a complete indifference and callousness on the part of 4/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC the plaintiff. To add this, according to the learned Counsel for the defendant, no reason, worth its name, is sought to be assigned in the affdavit in support of notice of motion for either non-appearance of the plaintiff and his Advocte on the date when the suit came to be dismissed or for condonation of inordinate delay. On the own showing of the plaintiff, according to the learned Counsel for the defendant, the reason of illness of Advocate Kamble does not inspire much confdence. Thus, according to the learned Counsel for the defendant, in the instant case, the notice of motion does not deserve to be allowed, even if the case of the plaintiff is construed rather liberally.
7. I have given my anxious consideration to the rival submissions. Ordinarily, the Courts lean in favour of condonation of delay. The overriding objective is to adjudicate the dispute between the parties on merit rather than shutting the door on a party for default or inadvertence. To advance the cause of substantive justice the Courts take a liberal approach. The term 'suffcient cause' thus receives a justice oriented construction.
8. In the instant case, the chronology of events, adverted to above, indicates that the plaintiff did not learn its lessons, to say the least. The suit was dismissed for want of prosecution on 5/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC 22nd June, 2015. The Court noted in the order dated 22 nd June, 2015, that when the matter was listed on 18 th June, 2015, none appeared for the plaintiff in the morning and afternoon session and therefore the suit stood over to 22nd June 2015 for dismissal. Since none appeared on that date, the Court was constrained to dismiss the suit. The said dismissal order was set aside by an order dated 23 rd December, 2015 in Notice of Motion No.1303 of 2015, subject to payment of costs. Post restoration, the suit again came to be dismissed in the morning session on 24th June, 2016. The Court noted that the plaintiff had even failed to take out the summons for judgment within six months of institution of the plaint in conformity with Rule 227 of the Bombay High Court (Original Side) Rules, 1980. However, as the motion was moved in the afternoon session, the order of dismissal was set aside and suit came to be restored to fle. Thirdly, the suit again came to be dismissed on 21 st March, 2018 for want of prosecution after noticing the aforesaid circumstances refecting upon want of due diligence on the part of the plaintiff.
9. It is true that the power to condone the delay and relieve the party of the consequences of default, whenever a suffcient cause is shown for the default or inadvertence, is exercised to advance the cause of substantial justice. The suffciency of 6/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC cause however hinges upon the facts of a given case. Ordinarily, when there is no negligence or lack of bona fde the discretion is exercised to construe the cause as suffcient. However, where the facts of the case demonstrate that the cause sought to be assigned does not commend itself as reasonable or bona fde and, conversely, indicates gross negligence and mala fde, the Court is justifed in refusing to exercise the discretion in favour of the party seeking condonation of delay.
10. A proftable reference in this context can be made to a judgment of the Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others1, wherein the principles were culled out as under:
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1 (i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic 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.
21.2 (ii) The terms "suffcient 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 fact- situation.
21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4 (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.
1
(2013) 12 Supreme Court Cases 649.
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NMCD1272-2019INCOMSS94-2014-.DOC 21.5 (v) Lack of bona fdes imputable to a party seeking condonation of delay is a signifcant and relevant fact. 21.6 (vi) 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.
21.7 (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the frst one warrants strict approach whereas the second calls for a liberal delineation. 21.9 (ix) The conduct, behaviour 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 cannot be given a total go by in the name of liberal approach.
21.10 (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.
21.11 (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.
21.12 (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. 21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
11. The Supreme Court also postulated some guiding principles having regard to the present day scenario. It was in terms observed that an application for condonation of delay should be drafted with careful concern and not in a hap- hazard manner on the assumption that, in any event, the Court would condone the delay. Paragraph 22 reads as under: 8/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 :::
NMCD1272-2019INCOMSS94-2014-.DOC "22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion 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.
22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 (c) 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 the adjudicatory system should be made as that is the ultimate institutional motto.
22.4 (d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
12. In the backdrop of the aforesaid propositions, reverting to the facts of the case, it would be imperative to note the averments in the affdavit in support of notice of motion. Paragraphs 7 to 9 of the affdavit have some bearing on the aspect of delay and suffciency of the cause. The preceding paragraphs refer to the historical facts of dismissal and restoration of the suit. Paragraphs 7 to 9 read as under:
"7. I say that while taking stock of my other matters which are entrusted to him somewhere in August, 2018, I enquired about his Suit also. He checked it on the website of High court but he could not fnd the matter as it was transferred to Commercial suit.
8. in the month of October 2018 the Advocate on record had been severally ill and was undergoing various test and during that period he was not attending to Courts as well as his ofce and hence I could not contact him to take the matter ahead and take appropriate steps. Annexed herewith the medical record of the Advocate Baliram Kamble showing that he was undergoing test as EXHIBIT-E and was subsequently admitted in the Hospital for brief period. This actually 9/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC disrupted this schedule and his appearance in court. He could not go to offce and could not return me my fle which was lying with him.
9. I say that receiving papers from Advocate Kamble, I met the present Advocate on record and entrusted the papers to her and requested her to take appropriate steps and hence there is a delay of one year i.e. 360 days as on April, 2019 is which is unintentional and bona fde. For the fault of the Advocate, I may not suffer as I have a good case on merits."
13. The averments in the affdavit in support of notice of motion, extracted above, even if construed rather generously indicate that the sole reason sought to be ascribed is that of the alleged illness of the counsel for the plaintiff. It is imperative to note that the learned Counsel for the plaintiff took ill in the month of October 2018. The pathological reports placed on record to substantiate the said claim also indicate that Mr. Baliram Kamble, the learned Advocate for the plaintiff, had undergone pathological examinations, and possible treatment, in the month of October 2018. The suit came to be dismissed on 21st March, 2018. The affdavit in support of notice of motion is conspicuously silent about the reason for non-appearance of the plaintiff on 21st March, 2018 nor any endeavour is made to demonstrate that on 21 st March, 2018, the Advocate for the plaintiff was prevented by a justifable cause from appearing before the Court. Thus, even if the case of the plaintiff is taken at par, there is no explanation, much less reasonable, on both the counts, namely, non-appearance and 10/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 ::: NMCD1272-2019INCOMSS94-2014-.DOC the delay in taking out the notice of motion for the period commencing from 21st March, 2018 to October 2018.
14. This factor assumes signifcance, if considered in the backdrop of the earlier orders of dismissal and restoration of the suit not once but twice. Can the application for restoration be said to be bona fde? It would be legitimate to expect that the fact that the suit was twice dismissed in default of appearance ought to have instilled a sense of sincerity and purpose in the plaintiff. A continuious course of indifference to the proceedings before the Court cannot be encouraged. In the least, such conduct betrays a totally callous and careless approach. In the backdrop of no justifable reason being assigned for the non-appearance and delay, the situation gets exacerbated.
15. In the aforesaid context, the reliance placed by the learned Counsel for the defendant on a judgment of the Supreme Court in the case of Basawaraj and another vs. Special Land Acquisition Offcer2, appears to be well founded. In the said case, after adverting to the previous pronouncements, the legal position was summarised in the following words:
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what 2 (2013) 14 Supreme Court Cases 81.11/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 :::
NMCD1272-2019INCOMSS94-2014-.DOC was the "suffcient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fde on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justifed ground to condone the delay. No court could be justifed in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no suffcient cause to prevent a litigant to approach the court on time condoning the delay without any justifcation, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
16. The upshot of aforesaid consideration is that the facts of the instant case, do not justify any other inference than that of want of due diligence and deliberate inaction on the part of the plaintiff. Thus, I am dissuaded from exercising the discretion in favour of the applicant.
17. Hence, the following order:
The Notice of Motion stands dismissed.
[N. J. JAMADAR, J.] 12/12 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 09:23:42 :::