Gujarat High Court
Oriental Insurance Co. Ltd vs Adani Enterprises Ltd on 6 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12544 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ORIENTAL INSURANCE CO. LTD.
Versus
ADANI ENTERPRISES LTD
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Appearance:
MR MAULIK J SHELAT(2500) for the Petitioner(s) No. 1
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR GAURAV S.
MATHUR FOR SINGHI AND CO(2725) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 06/10/2021
ORAL JUDGMENT
1. By preferring this petition, petitioner has challenged the order dated 09.05.2018 passed by the learned 3 rd Additional Senior Civil Judge, Gandhidham-Kutch in CMA No.56 of 2017 condoning the delay in preferring an application for restoration of the Special Civil Suit No.42 of 2000 under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC" for short) Page 1 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021
2. The short facts to the leading of the filing of present petition may be summarized as under:
2.1 The respondent - original plaintiff filed Special Civil Suit No.42 of 2000 against the petitioner for recovery of a sum of Rs.52,87,00,000/- before the learned Senior Civil Judge, Gandhidham. The defendant appeared in the suit and filed his written statement and contested the suit. Issues were framed by the Trial Court on 25.01.2001 and 24.06.2005. An affidavit was submitted by the plaintiff through its officer on 30.04.2007. The suit could not progress further as time was sought by the plaintiff before the Court to keep its officer present for cross-examination uptill 01.10.2014 and right of evidence of the plaintiff was closed by the Court. The plaintiff was not remained present for its evidence and vide order dated 03.01.2015, the Trial Court dismissed the suit under Order 17 Rule 2 of the CPC. After about 1025 days, the plaintiff filed an application for restoration of the suit alongwith the delay application on 24.10.2017. The said application was contested by the petitioner by filing its detailed reply dated 16.04.2018 Page 2 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 and objected such condonation of delay in filing restoration application. The Trial Court, vide its judgment and order dated 09.05.2018, allowed the delay application of the respondent/plaintiff in filing restoration application. The present petitioner, being dissatisfied with the order passed by learned 3rd Additional Senior Civil Judge, Gandhidham-Kutch in CMA No.56 of 2017 in Special Civil Suit No.42 of 2000 dated 09.05.2018, has approached this Court by filing this petition.
3. Heard Mr.Maulik J. Shelat, learned advocate for the petitioner and Mr.Mihir Thakore, learned Senior Advocate appearing with Mr.Gaurav Mathur, learned advocate for Singhi & Company for the respondent.
4. It is submitted by learned advocate for the petitioner that the Trial Court has committed an apparent error in condoning the delay of 1025 days in preferring the application for restoration of Special Civil Suit No.42 of 2000. It is further submitted that suit was filed in the year 2000 and affidavit in examination of chief was filed in the year 2007, but the plaintiff was unable to bring officer for cross-examination Page 3 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 uptill 2014 which resulted in closing of its evidence and the same was not challenged before the Higher Courts. It is further submitted that considering the entire set of facts and attitude of the plaintiff company, pursuing high stake claim in Court of law, would not deserve any second inning. It is further submitted that the ground raised by the plaintiff that its officer, who was looking after suit in question, left company in the year 2014 and played ignorance about dismissal of suit which is deplorable and cannot be believed. It is further submitted that the plaintiff being a big organization and someone left company, then official record of such person would definitely maintain by the company which could have been brought it before the Trial Court. Bonafides of the plaintiff was not examined by the Trial Court. It is further submitted that advocate engaged by the plaintiff was very well aware about dismissal of the suit, who has communicated such decision to officer concerned then assuming without admitting that such officer had left company. Such a ground cannot be accepted by the Court. It is further submitted that the plaintiff was not pursuing its case sincerely and not remained vigilant and therefore, plaintiff is not entitled to get such delay condone on the ground that the plaintiff was Page 4 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 remained unaware about process of the suit. Learned advocate for the petitioner has referred certain documents produced on record and submitted that time to time, adjournments were granted by the Trial Court. An application for dismissing the suit preferred by the plaintiff was made by the defendant, however, the Trial Court, on 02.07.2014, dismissed the application of the defendant directing the plaintiff to remain present before the next date for giving evidence without fail. It is further submitted that it was a lack of bonafide as well as negligence on the part of the petitioner which cannot be cured by permitting the plaintiff to condone the delay. Hence, it is requested by learned advocate for the petitioner to quash and set aside the order passed by the learned 3 rd Additional Senior Civil Judge, Gandhidham-Kutch in CMA No.56 of 2017 dated 09.05.2018 in preferring application for restoration of Special Civil Suit No.42 of 2000. In support of his arguments, learned advocate for the petitioner has relied upon the following judgments:
(I) Basawaraj and another Vs. The Special Land Acquisition Officer reported in AIR 2014 SC 746;
(II) Brijesh Kumar and others Vs. State of Haryana and others reported in AIR 2014 SC 1612;Page 5 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022
C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 (III) Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in AIR 2012 SC 1629;
(IV) Samsunisha Begaum W/o. Dr. Nasarullahkhan Dhaniani and others Vs. Vishnukumar Ambelal Patel and others reported in 2012 (3) GLR 2565; and the judgment confirmed by the Apex Court in SLP (Civil) No.20568 of 2012, (V) Ishwarlal Mali Rathod Vs. Gopal and others reported in 2021 Law Suit (SC) 564;
(VI) Sundar Gnanaolivu Vs. Rejendran Gnanavolivu (CMP No.20489 of 2001).
5. From the other side, learned Senior Advocate for the respondent has submitted that officer, who remained present on behalf of the plaintiff before the Trial Court, had left his service from the plaintiff- company and did not remain present in time before the Court. It is further submitted that the proceedings of the suit was not informed to the plaintiff through the officer, who had left the company nor the advocate. The plaintiff was unaware with the proceedings of the civil suit filed before the Trial Court. On 09.09.2017, status of the suit was found through online by the plaintiff and came to know that on 03.01.2015, Special Civil Suit No.42 of 2000 was dismissed by the Court for want of Page 6 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 prosecution. It is further submitted that immediately steps were taken by the plaintiff to get the certified copy which was received on 20.09.2017, and thereafter, application for condonation of delay was filed under Section 5 of the Limitation Act. It is further submitted that on coming to the knowledge of the dismissal of the suit by the plaintiff, immediately the application was filed. It is further submitted that such kind of approach before the Trial Court dismissing the suit was not proper. It is further submitted that once discretion is exercised by the Court in condoning the delay, the order passed by the Court-below cannot be interfered by this Court in a revisional jurisdiction or in a supervisory jurisdiction. In support of his arguments, learned Senior Advocate for the respondent has relied upon the judgment in the case of N. Balakrishnan Vs. M. Krishnamurthy reported in 1998 (7) SCC 123. It is further submitted that there was no lack of bonafide or negligence on the part of the petitioner in proceedings the suit or in filing the application for condonation of delay under Section 5 of the Limitation Act. That the Trial Court has rightly exercised the discretion in favour of the plaintiff condoning the delay of 1025 days, and therefore, inference of this Court is not warranted. Hence, it is Page 7 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 requested by learned Senior Advocate for the respondent to dismiss the present petition.
6. Having gone through the facts of the present case and submissions made by learned advocates for the respective parties as well as record placed before this Court, it appears that both the parties have produced their synopsis and written submissions in support of their case. Factual background of the case would require to be considered by this Court for deciding the present petition. The original plaintiff filed Special Civil Suit No.42 of 2000 under the provisions of Order 37 of CPC before the learned Senior Civil Judge, Gandhidham. On 16.10.2000, the written statement was filed by the defendant vide Exh.26, and thereafter, issues were framed vide Exh.37 on 25.01.2001. Affidavit of Manojkumar Upadhyay was filed by the plaintiff on 25.19.2002. Meanwhile, as per the application dated 11.10.2000 under Section 151 of the CPC, inquiry was conducted in respect of alleged tampering of record. The said application was rejected vide order dated 16.10.2000. The petitioner challenged the order before this Court in Civil Revision Application No.554 of 2001. Vide order dated 29.10.2002, this Court rejected the said Revision Application with a direction to dispose of the suit, within a Page 8 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 period of 12 months from the date of receipt of the order. It appears that thereafter, a Note of speaking to minutes was filed by the petitioner on 18.11.2002 which was disposed of by this Court on 29.11.2002 by substituting the period of 12 months to 6 months for disposal of the suit. It also appears that the present petitioner filed an application dated 01.01.2003 for stay/adjournment of the trial. The said application did not take place for about 1.5 years and meanwhile, the plaintiff filed affidavit of evidence of its third witness. During the pendency of the application dated 01.01.2003, another application was filed by the petitioner on 31.08.2004 praying for dismissal of the suit. The Trial Court, vide order dated 30.11.2004, rejected the application Exh.90 preferred by the present petitioner. Again, on 16.12.2004, the petitioner filed an application Exh.102 under Order 6 Rule 17 of the CPC for amendment of the written statement, which was allowed vide order dated 31.03.2005. By this time, the suit was ordered to be disposed of by end of May-2002, which was remained pending for a further period of three years. On 18.06.2005, the petitioner filed draft additional issue for being framed. Another application was filed by the petitioner Exh.159 on 15.09.2009 for framing further issue, which was Page 9 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 rejected vide order dated 28.12.2012. On account of change of name of the plaintiff to its present name, application for amendment of name of the plaintiff was filed which was allowed on 24.02.2011. The petitioner filed second amendment application in the written statement on 15.09.2011. Proceedings of the suit was delayed about 10 years from 29.11.2002. It appears that on 23.08.2013, the suit was pending for cross-examination of the witness of the plaintiff. As the witness was not fit well, an application for adjournment was submitted, which was objected by the petitioner. However, the Trial Court granted an adjournment as a last opportunity to the plaintiff. Another adjournment application was filed by the plaintiff before the Trial Court on 23.11.2013 which was granted. On 04.01.2014, the petitioner filed an application Exh.199 for dismissal of the suit for non- prosecution and/or for closing the stage of evidence of the plaintiff, which was rejected on 02.07.2014 with an observation that after spent of long time, it is not just to dismiss the suit, but suit would be decided on merits. Hence, this application is rejected. The plaintiff was directed to remain present before the Court to give evidence without fail on next date. On 22.12.2014, a request was made by learned Page 10 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 advocate for the plaintiff to adjourn the matter as the concerned witness was engaged in some urgent work and was not available. The Trial Court closed the stage of the evidence of the plaintiff. On 03.01.2015, again, concerned witness of the plaintiff was not present nor the advocate the Trial Court vide order dated 03.01.2015, dismissed the suit by the Trial Court under Order 17 Rule 2 of the CPC. The contentions raised by the plaintiff in their application for condonation of delay under Section 5 of the Limitation Act are that concerned officer of the plaintiff left the service of the plaintiff in the year 2014 and did not remain present before the Trial Court in the suit proceedings as well as the plaintiff was unaware with the proceedings and no information was supplied to the advocate, cannot be disbelieved by the Court. On checking the status through online by the plaintiff on 19.09.2017, for the first time, it was came into the knowledge of the plaintiff that suit was dismissed by the Court on 03.01.2015. It appears that certified copy was immediately applied on the very next day i.e. 20.09.2017 and plaintiff immediately approached the Civil Court by filing an application under Section 5 of the Limitation Act with a request to condone the delay of 1025 days for preferring application for restoration of the suit. From Page 11 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 the record, it appears that there is no lack of bonafide on the part of the plaintiff or negligence in conducting the suit and preferring an application under Section 5 of the Limitation Act.
7. The Hon'ble Apex Court, in the case of Basawaraj and another Vs. The Special Land Acquisition Officer (supra), has defined the sufficient cause in Paragraph No.9 as under:
"9. Sufficient cause is the cause for which defendant could not be blamed for this absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautions man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
8. The Hon'ble Supreme Court, in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai Page 12 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 (supra), has observed in Paragraph No.18 as under:
"18. .....If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay."
9. The Hob'ble Supreme Court, in the case of Brijesh Kumar and others Vs. State of Haryana and others (supra), has observed in Paragraph No.10(v), (ix) and (xvii) as under:
"v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact
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.
Xvii) 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."
10. The Hon'ble Supreme Court, in the case of Estate Page 13 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 Officer, Haryana Urban Development Authority and another Vs. Gopi Chand Atreja reported in 2019 LawSuit (SC) 726, has observed in Paragraph Nos.19 and 20 as under:
"19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.
20. In our view, it is a clear case where the appellant -
HUDA, i.e. their offices, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, the officers-in-charge of the case should be made answerable for the lapse on their part and make good the loss suffered by the appellants HUDA."
11. However, under the facts and circumstance of each case, much sufficient grounds to enable the Court concerned to exercise discretion for the reason that whenever the Court exercised discretion, it has to be exercised judicially. From the record, it appears that plaintiff has satisfied the Court -below that the plaintiff was prevented by any sufficient cause from prosecuting its case. As the officer attending the Court Page 14 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 proceedings had left the service of the plaintiff and did not inform the proceedings of the suit preferred by the plaintiff. Even advocate also did not inform about dismissal of the suit to the plaintiff. On coming to the knolwedge on 19.09.2017 of dismissal of the suit by the Court through online status, plaintiff immediately approached the Court for getting the certified copy as well as the advocate and filed an application for condonation of delay as well as restoration of the suit under Order 9 Rule 9 of the CPC.
12. The Hon'ble Supreme Court, N. Balakrishnan Vs. M. Krishnamurthy (supra), has observed in Paragraph Nos.9 and 10 as under:
"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 want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the Page 15 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to 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.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause."
13. In the instant case, the Trial Court has accepted the explanation of the plaintiff as sufficient and it is result of positive exercise of discretion and normally as observed by the Hon'ble Apex Court, the Superior Court should not disturb such findings much less in the revision or supervisory jurisdiction. From the record, it appears that discretion exercised by the Trial Court cannot be said to be untenable or arbitrary or perverse. Hence, considering the facts and submissions made by learned advocates for the respective parties, this Court is of the considered view that the order passed by the Trial Court allowing the Civil Misc. Application No.56 of 2017 condoning the delay cannot be said to be legal Page 16 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022 C/SCA/12544/2018 JUDGMENT DATED: 06/10/2021 or perverse or can be interfered by this Court.
14. In view or the above observations, present petition deserves to be dismissed and the same is dismissed. Rule is discharged.
(B.N. KARIA, J)
15. Learned advocate for the petitioner submits that while issuing notice by this Court on 21.08.2018, interim relief in terms of Para-6(B) was granted which is continued later on and the same may be extended for a period of eight weeks. Learned Senior Advocate for the respondent strongly objected the submissions made by learned advocate for the petitioner submitting that unnecessary proceedings are delayed. Considering the facts of the case, the proceedings initiated in the year 2000 cannot be permitted to be delayed and the prayer would be rejected. Restoration application preferred by the plaintiff shall be decided by the Trial Court in accordance with law within a period of six months.
(B.N. KARIA, J) rakesh/ Page 17 of 17 Downloaded on : Sun Jan 16 21:53:07 IST 2022