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Delhi District Court

India Bulls Financial Services Ltd vs Yogesh Amrutbhai Borgovakar on 5 July, 2010

                                          1

               IN THE COURT OF MS. BIMLA KUMARI 
              ADDL. SESSIONS JUDGE (NORTH):DELHI

Crl. Revision No.21/10
I.D. No. 02401R0211462010


India Bulls Financial Services Ltd.                                ... Revisionist


                             VERSUS
Yogesh Amrutbhai Borgovakar                                        ...Respondent 


Date of Institution: 20.05.2010
Date of reserving judgment:1.7.10
Date of pronouncement: 5.7.10
O R D E R

1 By the present order, I shall dispose of the revision filed by the petitioner company U/S 397 Cr.P.C for setting aside the impugned order passed by Ld. M. M. dated 18.3.10. Vide the said order, Ld. M. M. had dismissed the complaint of petitioner U/S 138 read with Section 142 of Negotiable Instrument Act for want of prosecution. 2 Brief facts of the case are that the respondent approached the petitioner company for personal loan of Rs. 32,000/­. Petitioner company sanctioned the loan after verifying the documents. It was agreed between the petitioner company and the respondent that respondent would pay the said loan in equated monthly installments. However, the defendant made default in payment of the said equated monthly installments. Later on, a settlement was arrived at between the petitioner and the respondent. Pursuant to the settlement accused issued a cheque dated 21.11.07 (should be 19.11.07) in favour of the company towards full and final payment of the amount. However, the cheque was dishonoured on account of 'insufficient funds' when it was presented for Revision No.21/10 1/4 2 encashment. Consequently, the petitioner filed a complaint U/S 138 read with section 142 of Negotiable Instrument Act. Ld. M. M. ordered the issuance of summons to respondent on filing of process fee by the revisionist.

3 It is the case of the revisionist that the present matter was filed by Law Firm namely, "Kohli and Sobti" law associates, which was on the panel of the company. Unfortunately, some dispute between the law firm and the petitioner company arose, as the law firm was not diligently handling the matter of the company. As the said law firm did not pursue the matter of the petitioner company diligently, the process fee could not be filed in the present matter. The petitioner company took back the retainership from the said law firm and engaged Mr. Vivek Malik, Advocate on 15.3.10 for handling the matter of the company vide retainership agreement dated 15.3.10. On 18.3.10 Mr. Vivek Malik appeared in the court of Ld. M. M and filed vakaltnama. He (Mr. Vivek Malik) sought some time to file the process fee, but Ld. M. M. declined the request and dismissed the complaint on account of non­prosecution. 4 The ground taken in the revision are that Ld. Trial Court failed to appreciate the fact that non­prosecution in filing of the process fee on behalf of petitioner was neither deliberate nor intentional; that Ld. Trial Court erred by not entertaining the request of new counsel by granting one and last opportunity to file the process fee; that the petitioner company should not be punished for no fault of it; that the petitioner company even did not have any information that the law firm "Kohli and Sobti" law associates did not file the required process fee; that no prejudice would be caused to any party, in case, matter is restored to its original number as the matter is at preliminary stage; that Revision No.21/10 1/4 3 petitioner may be granted an opportunity so that matter could be decided on merit and offender may not get unpunished for no fault of the petitioner 5 I have heard arguments from ld. counsel for revisionist. I have perused the revision file as well as the trial court record. 6 A perusal of the trial court record shows that the present complaint was filed by the law firm "Kohli & Sobti". The trial court record further shows tha petitioner did not take steps by way of filing of the process fee as per the directions of Ld. Trial Court and Ld Trial Court was of the view that no purpose would be served by keeping the case pending. The fact that the petitioner company took back retainership from the earlier law firm namely, "Kholi & Sobti" law associates and engaged Mr. Vivek Malik, for handling its matter, is supported with documents as vakaltnama of new counsel Mr.Vivek Malik is on record. In view of above facts, the explanation furnished by the petitioner company, for not filing the process fee, seems to be genuine. Hence, I am of the considered view that non­prosecution in filing the process fee on the part of petitioner company, was not deliberate and intentional.

7 It is worth noting that a party cannot be made to suffer on account of fault of the counsel. Since the petitioner has sufficiently explained the reason for not filing the process fee, I am of the considered view that it is a fit case where the impugned order of Ld. Trial Court requires interference. Accordingly, the impugned order passed by Ld. Trial Court is hereby set aside. The complaint filed by the petitioner before Ld. Trial Court is restored to its original number. Revisionist will appear before Ld. Trial Court on 15.07.10. In the facts and Revision No.21/10 1/4 4 circumstances of the case, there is no order as to costs. 8 With these observations, the appeal filed by the appellant stands disposed of. Trial court record alongwith copy of this order be sent back. Revision file be consigned to Record Room. Announced in open court today 5.7.2010 (Smt. Bimla Kumari) Additional Sessions Judge (North) Tis Hazari Courts, Delhi.

Revision No.21/10 1/4