Bombay High Court
8 Poopcee International vs 6 Robert Sequira on 14 November, 2011
Bench: G. S. Godbole
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srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.26 OF 2011
IN
CIVIL REVISION APPLICATION (ST) NO.32 OF 2011
WITH
CIVIL APPLICATION NO.51 OF 2011
1 Bombay Latex & Dispensions Pvt. Ltd. ]
A company registered under the Companies ]
Act, 1956, having its registered office at ]
Mumbai 400 018.
83-C, Dr. Annie Besant Road, Worli, ]
]
2 M/s. Narang Latex & Dispensions Pvt. Ltd. ]
3 M/s. Narang Hygienic Products Pvt. Ltd. ]
4 M/s. Narang Sales & Marketing Pvt, Ltd. ]
5 M/s. Narang Polymers Pvt. Ltd. ]
6 M/s. Narang Rubber Industries Pvt. Ltd. ]
7 Poopcee Sales & Marketing ]
8 Poopcee International ] .. Applicants
V/s.
1 Jethalla Amritlal Doshi (deleted) ]
2 Vasantben Jethalal Doshi ]
Adult, Occupation:- Business ]
3 Kirtikumar Jethalal Doshi ]
Adult, Occupation:- Business ]
4 Maheshkumar Jethalal Doshi ]
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Adult, Occupation:- Business ]
Being the Trustees of J. A.Doshi Family Trust, ]
being the proprietors of M/s. Shreyas ]
Exhibitors, a firm trading at 305, Masjid ]
Bunder Road, 1st Floor, Mumbai. ]
5 T. S. Narang ]
83-C, Dr. A. B. Road, Worli, ]
Mumbai 400 018. ]
6 Robert Sequira, Advocate ]
Carmel Society, St. John Baptist Road, ]
Bandra, Mumbai 400 050. ] .. Respondents.
Mr. P. S. Dani, for the Applicants.
Mr. Vijaysingh Thorat, Sr. Counsel along with Mr. Ravi Kadam with Mr.
Dipen Fura for Respondent Nos.2 to 4.
Mr. R. Sequira, Respondent No.6 present.
CORAM : G.S.GODBOLE,J.
RESERVED ON : 4th OCTOBER, 2011
PRONOUNCED ON : 11th NOVEMBER, 2011.
JUDGMENT:-
1 In this Civil Application, the learned Single Judge (Coram: D.
G. Karnik, J.) had directed impleadment of the Advocate who had
represented Applicants in the Small Causes Court. Accordingly, Advocate
has filed reply and the Respondents have also filed reply. Affidavit in
rejoinder has been filed by Mr. Lalit B. Narang, President of the
Applicants. By my order dated 23rd September, 2011, the record of the
Court of Small Causes was called for to verify the fate of the Applications
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filed for certified copies.
2 Both these Civil Applications for condonation of delay have
been lodged on 22nd December, 2010 and 23rd December, 2010
respectively. These Applications have been filed on the basis of
application for certified copies which were filed on 16th November, 2010
for which the copies were delivered on 26th November, 2010. Pursuant to
my earlier order dated 23rd September, 2011, the original record of the
Court of Small Causes is produced which indicates that Applications for
certified copies were indeed filed on 14th June, 2010 and the copies were
ready on 19th June, 2010. This applications sere filed by earlier Advocate
of the Applicants. The Applicants will, therefore, be entitled to the benefit
of the time spent in preparing the said certified copies.
3 By calculating the delay in this manner, it will be clear that
the delay is of 71 days in CRA No.32 of 2011 and 72 days in CRA (St.)No.
26 of 2011.
4 The Applicants have sought to contend that their Advocate
had assured them that he would inform them as and when the Judgment
is made available and pronounced and they came to know about the
decree only on 15th October, 2010 when the Bailiff of the Small Causes
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Court dispossessed them.
5 The Advocate for the Applicants has filed his affidavit in both
the Civil Applications, giving entire history of the litigation. It is stated in
paragraph 6 of the affidavit filed in C.A. No.51 of 2011 that :-
" I say that there no entry in my diary that the aforesaid
Appeal No.273/07, 274 of 2007 Rev. Appl no.195/2007 and
Cross Appeal No.7/07 were on board of the Appeal Court of
the Small Causes Court. I say that either because of lack of
communication about the matter having being adjourned to
9/6/10 not having been communicated to me by the
Appellants/Applicants and/or by the Deponent of the said
affidavit and/or J.J.Shah, who were required to remain
present and/or due to inadvertence the entry has not been
made in my diary on 9/6/10. Hereto annexed is the xerox
copy of my diary dated 9/6/10 and marked Annexure VII. I
respectfully submit that it was obligatory on the part of the
said Deponent and or Mr. J.JShah to have informed me that
the matter was kept for judgment before the Hon'ble Appeal
Court of Small Causes and also to inform me the gist of the
operative order concerning the time given by the Hon'ble
Court. I submit that in the facts and circumstances mentioned
above I have such no knowledge of the operative part or the
said contents of the said judgment and or the operative part
thereof which were within the knowledge of the said Deponent
and/or his representative Mr. J. J. Shah who had made the
said application dt. 27/10/10 viee Annexure VII hereto."
6 In the said affidavit, it is stated that Applications for certified
copies were filed on 14th June, 2010. It is necessary to note that in the
affidavit in reply filed by the Respondent (Original Plaintiff), they have
relied upon the reply dated 27th October, 2010 filed by Mr. Lalit Narang,
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President of the Applicants as also the affidavit dated 27th October, 2010
filed by Mr. Jitendra Jivanlal Shah, representative of the Defendants. In
the rejoinder which is filed, the President of the Applicants has stated
thus:-
"17:- .................. However, the fact remains that Mr.
Robert Sequeirra admits that he was unaware about the date
of the Judgment being 9/6/2010 and hence contention raised
even by the other deponent that J.J. Shah and/or I should be
deemed to be knowing of the date of 9/6/2010, have not been
told so by the Advocate, therefore does not stand to reason.
18:-
th
............. I say and submit that the said Application
dated 27 October, 2010 was dictated and prepared by Mr.
Robert Sequerria himself and only filed under the signature of
Mr. J. J. Shah. I say and submit that the said J.J. Shah was
made to believe that the said Application was made only for
the purpose of restoration of good/premises which had been
illegally executed and the said Shah thinking the said
Application for that purpose had signed on the same. I say and
submit that, it is material to note that the Application filed by
the present Deponent being Application for allowing the
Petitioner to take back goods which is also affirmed on 27 th
October, 2010 and it has been placed as Exhibit "A" to the
Affidavit filed by Shri Doshi clearly mentions that I was not
aware about the Order passed by the learned Court on 9th
June, 2010. I say and submit that the Application filed by me
under my own signature clearly depicts true picture and I had
prepared and signed the said Application/Affidavit. Having
come to know of the same, Mr. Robert Sequeirra thereafter
persuaded Mr. J. J. Shah to sing on the subsequent Application.
I say and submit that the said Application was prepared mald
fide by the said Mr. Robert Sequeirra only to prevent any
further allegation being made against him and with a view to
take defense, when he would be confronted with such
assertions."
7 Thus this shows that aforesaid Respondents have made
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allegation against their own Advocate. It is not possible to lose site of the
fact that the Advocate had, in fact, applied for certified copies on 14th
June, 2010 but the delivery of the said copies were taken on 19th April,
2010 i.e. after this Court directed impleadment of the Advocate on 3rd
April,2011. One thing is certain that, apparently, disputes and the
differences had arisen between the Advocate for the Applicants in the
Small Causes Court and the Applicants themselves and there was lack of
communication, which is evident from the fact that though certified copies
were applied for on 14th June, 2010, within five days of the impugned
Judgment and Order and were ready on 16th July, 2010; till the date of
dispossession in execution of the decree on 15th October, 2010, the
delivery of the said copies has not been taken. Whether the Advocate for
the Applicants should have himself taken delivery on his own or whether
the Applicants should have followed up the matter with their Advocate are
questions about the relation between the Advocate and the Applicants and
there is no need to go into those aspects in great details. The fact remains
that Advocate had applied for the certified copies on 14th June, 2010.
8 I have perused the Original applications from the record of
the Small Causes Court and though the said applications have an
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endorsement that the copies will be delivered on 19th July, 2010; that
endorsement is not signed by any one. There is an earlier endorsement
on the applications for certified copies to the effect that the certified copy
would be delivered on 30th June, 2010 and that endorsement is made on
17th June, 2010 and the same has been signed by some one. It is possible
that the said endorsement might have been signed by the Clerk of the
Advocate for the Applicants Mr. Abdulla who had filed applications on 14th
June, 2010. The endorsement on the applications clearly shows that the
certified copy was not ready on the earlier assigned date i.e. 30th June,
2010 but the copy was ready only on 16th July, 2010. It is thus clear that
on the date which was assigned for taking delivery of the copies i.e. 30th
June, 2010, copy was not ready and this is observed from the fact that the
Applications itself have the endorsement that the decree was signed on
13th July, 2010. It is thus clear that there was no further intimation given
to the Advocate for the Applicants or to the Applicants that certified copy
would be delivered on 19th July, 2010. Once the earlier time for handing
over certified copy which was fixed on 30th June, 2010 had expired and in
the absence of any further intimation about the preparation of the
certified copies, neither Applicants nor their Advocate can be blamed.
9 In so far as condonation of delay is concerned, it is well
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settled that the court has to take a liberal view to the extent permissible.
Every day's delay is not required to be explained. The term sufficient
cause for delay is to be construed liberally and the Court should not take
pendantic approach. In this case, the decree has been executed and the
Applicants have also been dispossessed in the month of October, 2011 and
thereafter some efforts must have been made for filing Revision
Applications and the same in fact has been filed within the statutorily
prescribed period of 90 days from the date of dispossession. It is obvious
that if the delay is condoned, some prejudice will be caused to the
Respondent/ landlord in as much as the challenge to the decree passed in
their favour which is already executed will become alive on condonation
of delay. The Applicants were negligent in not following their matter and
meeting their Advocate. However, for such a negligence for a brief period,
Applicants can not be penalized by denying them chance to have an
adjudication of their case before the Highest Judicial Forum in the State of
Maharashtra. The prejudice caused to the Respondent/ landlord will have
to be compensated in terms of money.
10 Hence, I pass the following order:-
(a) Both the Civil Applications are allowed and the delay is
condoned, subject to payment of costs of Rs.7,500/- in each application to
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the Respondent/landlord. No costs would be payable to Respondent No.
6.
(b) The payment of costs would be condition precedent. The
costs shall be deposited in this Court within a period of eight weeks from
today, failing which this order will stand automatically recalled and the
Civil Applications will stands dismissed.
(c) Only after costs are paid/deposited, Civil Revision
Applications will be numbered. Respondent/landlord will be permitted to
withdraw the costs without imposing any condition for withdrawal.
(G.S.GODBOLE,J.)
