Bombay High Court
Vidyut Enterprises vs Popatlal Fulchand Sundesha on 18 December, 2009
Bench: S.A. Bobde, S. J. Kathawalla
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO. 6 OF 2007
IN
APPEAL NO. 782 OF 2006
IN
NOTICE OF MOTION NO. 2618 OF 2006
IN
SUIT NO. 1154 OF 1992.
1. Vidyut Enterprises ]
a partnership firm carrying on business at ]
5 Gyan Nagar, Lokmanya Tilak Road, ]
Borivali (W), Bombay- 400 092. ]
2. Manjuulaben Nagraj Jain of
ig ]
Bombay, Indian In habitant, ]
Residing at 402, Shree Shubh Apartment, ]
'B' Wing, L.T. Road, Borivali (W), ]
Bombay-400 092. ]
3. Parasmal Roopchand Shah of ]
Bombay, Indian Inhabitant, ]
Residing at Room No.15, ]
Natraj Market, Malad, ]
Bombay-400 064. ] ..Petitioners.
v/s.
1. Popatlal Fulchand Sundesha. ]
2. Basant Fulchand Jain ]
3. Mahendra Fulchand Jain ]
4. Subash Fulchand Sundesha, all of Bombay ]
Indian Inhabitant, Carrying on business ]
at 206, Creative Industrial Estate, ]
N.M. Joshi Marg, Bombay-400 011. ]
5. Pushpaben Babulal Baldota of Bombay ]
And Rajasthan, Indian Inhabitant, residing at ]
Subhash Road, Falna, Rajasthan. ]
6. Prakash Suganchand Mehta of Bombay ]
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Golwad Indian Inhabitant, residing at ]
Post Golwad, District Thane. ]
7. Bastimal Sagarmal Jain of Bombay ]
Residing at 5 Gyan Nagar, Lokmanya Tilak ]
Road, Borivali (W), Bombay-400 092. ]
8. Nirlem Investment Pvt. Ltd. ]
9. Tanna Estates Pvt. Ltd., Both having ]
Registered Office at 11A, Nathalal Parekh ]
Marg, Bombay-400 039. ] ..Respondents.
WITH
REVIEW PETITION NO. 7 OF 2007
ig IN
APPEAL NO. 783 OF 2006
IN
NOTICE OF MOTION NO. 2172 OF 2006
IN
SUIT NO. 1154 OF 1992.
Bastimal Sagarmal Jain of Bombay ]
Residing at 5 Gyan Nagar, Lokmanya Tilak ]
Road, Borivali (W), Bombay-400 092. ] ..Petitioner.
v/s.
1. Popatlal Fulchand Sundesha. ]
2. Basant Fulchand Jain ]
3. Mahendra Fulchand Jain ]
4. Subash Fulchand Sundesha, all of Bombay ]
Indian Inhabitant, Carrying on business ]
at 206, Creative Industrial Estate, ]
N.M. Joshi Marg, Bombay-400 011. ]
5. M/s. Vidyut Enterprises ]
a partnership firm carrying on business at ]
5 Gyan Nagar, Lokmanya Tilak Road, ]
Borivali (W), Bombay- 400 092. ]
6. Manjuulaben Nagraj Jain of ]
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3
Bombay, Indian In habitant, ]
Residing at 402, Shree Shubh Apartment, ]
'B' Wing, L.T. Road, Borivali (W), ]
Bombay-400 092. ]
7. Pushpaben Babulal Baldota of Bombay ]
And Rajasthan, Indian Inhabitant, residing at ]
Subhash Road, Falna, Rajasthan. ]
8. Parasmal Roopchand Shah of ]
Bombay, Indian Inhabitant, ]
Residing at Room No.15, ]
Natraj Market, Malad, ]
Bombay-400 064. ]
9. Prakash Suganchand Mehta of Bombay ]
Golwad Indian Inhabitant, residing at
ig ]
Post Golwad, District Thane. ]
10. Nirlem Investment Pvt. Ltd. ]
11. Tanna Estates Pvt. Ltd., Both having ]
Registered Office at 11A, Nathalal Parekh ]
Marg, Bombay-400 039.: Respondents ] ..Respondents.
...
Mr. G. K. Kerkera, i/b. M/s. A. V. Jain Associates, for Petitioners in both
Review Petitions.
Mr. G. Joshi, with Mr. Simil Purohit with Ms. Kanchan Shivkar, i/b.
Gajria & Co., for Respondents in both Review Petitions.
...
CORAM: S. A. BOBDE &
S. J. KATHAWALLA, JJ.
RESERVED ON : 8TH DECEMBER 2009.
PRONOUNCED ON : 18TH DECEMBER 2009.
JUDGMENT :
The above review petitions are filed by the petitioners
seeking review of the order dated 22nd December 2006. By the said order,
the applications of the petitioners to extend time, allowing them to make
the payment of costs of Rs.1,50,000/- (Rupees One Lac Fifty Thousand
only) to the respondents, was rejected on the ground that the petitioners
were unable to produce the pay order before the Court at the time of
making of the said application.
2. The facts as the record shows are as under :-
(i) The review petitioners are the original defendants in Suit
No.1154 of 1992. The respondents in the review petition are the original
plaintiffs in the said Suit No. 1154 of 1992. The said Suit No. 1154 of
1992 was filed by the respondents inter-alia seeking that the agreement
between the respondents and the petitioners dated 31st December 1991 be
declared to be valid and binding on the petitioners. In the said suit, the
respondents also sought that the petitioners pay to the respondents dues
amounting to Rs.50,89,114/- with interest at the rate of 21% per annum
till the date of redemption. The respondents have also sought a
declaration that the repayment of the said dues is secured by a valid and
subsisting equitable mortgage of the property described in Exhibit 'A' to
the plaint. Alternatively, respondents have prayed that it be declared that
a sum of Rs.1,96,89,114/- with further interest at the rate of 21% till the
date of redemption and thereafter, is payable by the petitioners to the
respondents. Other interim and ad-interim reliefs were also prayed for.
(ii) Since the petitioners had not filed their written
statements in the suit, a notice of motion being No.2618 of 2006 was
inter-alia taken out for condonation of delay in filing the written
statements and for orders to permit the petitioners to file their written
statements. However, the learned Single Judge [Coram :- S.K. Shah, J.]
dismissed the notice of motion and kept the suit for recording of evidence.
(iii) Against the said order passed by the learned Single
Judge dated 27th September 2006 dismissing the petitioners' Notice of
Motion No.2618 of 2006, the petitioners filed appeals being Appeal No.
782 of 2006 and Appeal No.783 of 2006. The said appeals came up
before the Division Bench comprising of R.M. Lodha, J. and one of us
(S.A. Bobde, J.). The Division Bench by its order dated 21st November
2006 by consent of the parties condoned the delay in filing the written
statement and the petitioners were directed to file their written statements
subject to payment of a sum of Rs.1,50,000/- (Rupees One Lac Fifty
Thousand Only) as costs to the respondents within two weeks. The
Division Bench also expedited the hearing of the suit.
(iv) On 4th December 2006, the Constituted Attorney of the
petitioners admittedly tendered a pay order to the Advocate for the
respondents, issued in the name of the plaintiff Popatlal Fulchand
Sundesha. However, alongwith the name of the plaintiff, the words "and
others" was also included in the pay order. The Advocate for the
respondents, therefore, refused to accept the pay order. Thereupon, the
Constituted Attorney of the petitioners forthwith issued a cheque dated 4th
December 2006 of Rs.1,50,000/- in favour of M/s. Gajria & Co.,
Advocate for the respondents. The following day, the Advocate for the
petitioners by his covering letter dated 5th December 2006 returned the
pay order to the Bank, which pay order was rejected by the Advocate for
the respondents alongwith a request to cancel the said pay order and to
transfer or credit the amount of said pay order to the account of the
Constituted Attorney maintained by the said Bank. However, before the
amount of the pay order could be transferred to the account of the
Constituted Attorney of the petitioners, the cheque issued to the Advocate
for the respondents was presented for payment and dishonoured due to
'insufficient funds'.
(v) The Advocate for the respondents by his letter dated 9th
December 2006 informed the Advocate for the petitioners that the cheque
dated 4th December 2006 had been dishonoured. On being so informed,
the Constituted Attorney of the petitioners obtained another pay order
dated 9th December 2006 bearing No.846777 and under a covering letter
dated 11th December 2006 forwarded the said pay order to the Advocate
for the respondents. However, the Advocate for the respondents under his
covering letter dated 11th December 2006 returned the pay order dated 11th
December 2006 to the Advocate for the petitioners on the ground that the
petitioners were required to pay the said amount towards cost on or before
4th December 2006, and having failed to do so the pay order cannot be
accepted on 11th December 2006.
(vi) The petitioners, therefore, by a precipe mentioned the
matter before the Division Bench comprising of R.M. Lodha and S.A.
Bobde, JJ. on 12th December 2006 and sought directions against the
respondents to accept the said pay order. However, when the Division
Bench asked the petitioners to produce the said pay order, the Advocate
for the petitioners was not in a position to do so as the said pay order was
apparently lying with the Constituted Attorney of the petitioners who was
not present in Court at the time of making the said application on 12th
December 2006. The Division Bench hence rejected the application by an
order dated 22nd December 2006 on the ground that the pay order was not
produced by the petitioners on being asked to do so at the time of making
of the said application.
(vii) The petitioners by another precipe dated 12th January
2007 once again made an application on 15th January 2007 before the
Division Bench comprising of R.S. Khandeparkar and D.Y. Chandrachud,
JJ. However, the Division Bench was of the view that the reliefs prayed
for by the petitioners would amount to seeking modification of the earlier
order of Court dated 22nd February 2006 and could hence only be granted
by the Bench of the Court, which has passed the order. The petitioners
then filed the above review petitions on 24th January 2007.
(viii) The Hon'ble Chief Justice by his order dated 17th April
2007 assigned the review petitions to the Division Bench of J.N. Patel and
A.A. Sayed, JJ. By an order dated 7th September 2007, the Division
Bench of J. N. Patel and A.A. Sayed, JJ. directed the petitioners to get
the matter assigned to a Special Bench of which S. A. Bobde, J. is a
member. Hence, the petitioners got the review petition assigned before
this Bench praying for modification of the said order dated 22nd December
2006.
3. We have heard the Advocates appearing for the parties. We
need not delve into the law relating to filing of a Written Statement before
a Court and the time period in which it must be done, as the delay by the
petitioners in filing the written statement in the original suit, was already
condoned by this Court, in Appeal No. 782 of 2006 and Appeal No.783 of
2006, subject to payment of costs of Rs. 1, 50, 000/- by the petitioners to
the respondents, within two weeks time. It seems that due to a
compounding number of aforestated unfortunate circumstances, the
petitioners were unable to pay the said costs to the respondents, although
from the facts and evidence before us, it is clear they have made every
effort to do so. As regards filing of the review petition, the petitioners did
so in January 2007 itself, but due to administrative delay in constituting a
Bench to hear the petition, almost two years have passed. The petitioners
have done their part by filing the review petitions within reasonable time
and cannot be blamed for the delay that occurred thereafter.
4. The application made before the Court, on 22nd December
2006, was dismissed because the petitioners were unable to provide a
copy of the Pay Order, at the time of mentioning of the appeal, when
called upon to do so. It seems that when the application was made, the
Constituted Attorney, who was in possession of the said Pay Order was
not present in Court. Subsequently, the petitioners have submitted a copy
of the said Pay Order, dated 9th December 2006, along with the covering
letter, dated 11th December 2006, which the respondents had refused to
accept. The copy is annexed at Exhibit E of the petition. We have also
seen Exhibit F, which is the letter sent to the petitioners, by the learned
advocate for the Respondents, refusing to accept the said Pay Order as the
date for payment, i.e. 2 weeks from the date of the Court Order, dated
22nd December 2006, had elapsed on 4th December 2006. In the light of
this evidence and in the absence of any replies to the review petition by
the respondent, we can conclude that the petitioners were indeed in
possession of a pay order dated 9th December 2009 which he was unable
to produce before the Division Bench on 22nd December 2006 and the
application for extension of time to make payment was rejected on the
sole ground that the petitioners were unable to produce the pay order in
Court on 22nd December 2006.
5. We feel that the suit involves high stakes for both parties and
it would not be in the interest of justice to dismiss the suit merely on
ground that the learned Advocate for the petitioners could not produce
this copy of the Pay Order at the time of the making of the application on
22nd December 2009. It is however correct that the petitioners delayed in
payment of the costs of Rs. 1, 50, 000/- to the respondents by about seven
days in view of the aforestated mistakes on their part. There was then
further delay and inconvenience caused by the petitioners being unable to
produce the said Pay Order, on the date of mentioning of the Appeal.
We feel that it is hence reasonable to impose an additional cost of
Rs. 25, 000/- on the petitioners to be paid to the respondents.
6. The review petitions are, therefore, allowed to the extent that
the order, dated 22nd December 2006, dismissing the applications to direct
the respondents to accept the Pay Order is set aside. However, the
petitioners are directed to pay costs of Rs. 1, 75,000/-, which includes
additional costs of Rs. 25,000/-, to the respondents within one week from
today. The petitioners shall also forward copies of the written statements
to the Advocate for the respondents alongwith the pay order within one
week from today. In the event of the petitioners failing to comply with
the directions given herein the review petitions shall stand dismissed
without reference to this Court. Upon payment of the said amount by the
petitioners to the Advocate for the respondents and production of the
necessary acknowledgement by the petitioners, office to take the written
statements of the petitioners on record.
7. Parties agree that the suit be disposed of by the end of May
2010. Needless to add that the undertaking given and recorded in the
order dated 21st November 2006 shall continue.
ORDER ACCORDINGLY.
(S. A. BOBDE, J.)
(S. J. KATHAWALLA, J.)
