Estate vs Limited
2011 Latest Caselaw 68 Bom

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    lgc
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION




                                                                                               
                                   WRIT PETITION NO.7840 OF 2011




                                                                       
          Patel Engineering Limited                                  ]
          a public limited company registered                        ]
          under the Companies Act, 1956 and                          ]
          having its registered office at Patel                      ]




                                                                      
          Estate, S V Road, Jogeshwari (West)                        ]
          Mumbai - 400 012                                           ].... Petitioner
                versus
          United Real Estate and Builders Private                    ]




                                                         
          Limited, a private limited company                         ]
          registered under the Companies Act,
                                         ig                          ]
          1956 and having its registered office                      ]
          at 1404, Arcadia, Nariman Point,                           ]
          Mumbai 400 021                                             ]... Respondent
                                       
          Mr. V R Dhond, Senior Advocate, with Mr.Ashish Kamat with Mr.Shauilesh 
          Poria and Mr.Amit Kanani i/by M/s. Hariani & Co. for the Petitioner.
          Ms/Alpana   Ghone   with   Ms.   P   L   Bachani   i/by   I   R   Joshi   &   Co.   for   the 
                

          Respondent.
             



                                                      CORAM :        R M SAVANT, J.

                                                      DATE   :       17th November 2011

          ORAL JUDMGNET





          1             Rule,   with the consent of the parties made returnable forthwith 

          and heard.





          2             The above Petition takes exception to the order dated 27/4/2011 

passed by the learned Judge, City Civil Court, Mumbai by which order Notice

of Motion No.1840 of 2010 filed by the Petitioners who are the original

Defendants in Short Cause Suit No.2987 of 2002 came to be rejected.

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    3             Shorn of unnecessary details a few facts can be stated thus :-

The Respondents have filed Short Cause Suit No.2987 of 2002 for

injunction. Suffice it to say that the said suit came to be dismissed for non-

prosecution on 23/2/2005 on account of non-compliance by the Plaintiffs in

the matter of service of writ summons. It appears that for some reason, the

application for restoration was not made by the Plaintiff, and was ultimately

made in March 2010 by filing Notice of Motion No.845/10 for restoration. The

said motion was served on the Defendants with a covering letter that the same

would appear on board on 9/4/2010. The defendants and their lawyer were

present in the court on 9/4/2010, but the board of the said Court was

discharged, and the next date given was 26/4/2010. On the said day, the

learned Judge did not sit, however against the Suit number of the present suit

which was appearing at Sr.No.32 and against matters at Sr.Nos.31 to 36 the

date 2/7/2010 was written. The Defendants went away in view of the fact that

the next date was 2/7/2010. To the surprise of the Defendants, they received a

letter dated 25/6/2010 from the Solicitors of the Petitioners stating that the

said Notice of Motion No.845/10 was allowed on 11/6/2010. On receiving the

said letter the Defendants made inquiries, and on such inquiries it was revealed

to them that though the said Motion was adjourned to 2/7/2010 on

26/4/2010, it had thereafter appeared on board on 4/5/2010, and thereafter

on 11/6/2010 on which dates they did not remain present as they were

labouring under the impression that the said Motion would be heard on

2/7/2010. The said Notice of Motion came to be allowed on the said day i.e.

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11/6/2010. Resultantly, the delay came to be condoned and the suit came to

be restored to file.

4 On the basis of the aforesaid facts the Defendants filed Notice of

Motion No.1840 of 2010 for setting aside the said order dated 11.6.2010 on

the ground that in view of the fact that they were labouring under an

impression that the said Notice of Motion No.845 of 2010 would be heard on

2/7/2010, they could not participate in the proceedings, resulting in the said

proceedings being decided exparte against them. The said Notice of Motion No.

1840 of 2010 was opposed by the Plaintiffs by filing their reply. The learned

Judge considered the said Notice of Motion filed by the Defendants, and as

indicated above, by impugned order dated 27/4/2011 rejected the same. The

Notice of Motion has been rejected on the ground that the Defendants ought to

have made inquiries if there was some confusion. A finding was recorded by

the trial Court after observing that looking to the board of the said day i.e.

26/4/2010 and the dates written against the suit of the Plaintiffs and other

matters appearing from Sr.Nos.31 to 36, there is sufficient reason for some

confusion. The Court thereafter has also observed that since the order passed

in Notice of Motion No.845 of 2010 has been set aside and the suit was

restored and Plaintiff has deposited the cost of Rs.5,000/-, the relief sought by

the Defendants could not be granted. The trial Court further observed that the

bracketing the group of cases by the Sheristedar which include the suit in

question is at the most a technical error and should not be highlighted and

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capitalized to drag the matter back.

5 Heard the learned counsel for the parties and perused the reasons

mentioned in the impugned order.

6 It is required to be noted that as observed by the learned Judge,

City Civil Court, Mumbai, that in so far as the suit in question which was

appearing at Sr.No.32 on the said date i.e. 26/4/2010, the date 2/7/2010 was

appearing out side the bracket of the cases from Sr.Nos.31 to 36. The learned

Judge also accepts the said position, and observed that there is scope for

confusion, but thereafter has totally misdirected himself by stating that if there

was any doubt in the mind of the Defendants, the Defendants were required to

make an inquiry. The said observation in my view is unwarranted, if the

Defendants were labouring under an impression that the date given on

26/4/2010 was 2/7/2010 in view of the said date being written outside the

bracketed portion on 26/4/2010, therefore there was no question of there

being any doubt as they had left the court on the basis that the next date

would be 2/7/2010. It is also required to be noted that the learned Judge

accepts the fact that the bracketed portion and the date mentioned out side it,

is an act of the Sheristedar of the Court, but thereafter the learned Judge seeks

to sort of trivialize the issue by observing that it is merely a technical error and

should not be highlighted and capitalized to drag the matter back. In the said

process the learned Judge has lost sight of the fact that the Notice of Motion

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which was an application for restoration of the suit which had been dismissed

for default about 5 years back, has been decided in the absence of the

Defendants.

7 In my view, the aforesaid facts have led to a miscarriage of justice

inasmuch as the Defendants were precluded from appearing before the trial

Court on the day fixed as they were labouring under an impression that the

date given was 2/7/2010, on account the date mentioned outside the

bracketed portion. In my view, the Notice of Motion could not have been

decided in the manner done by the learned Judge. It is trite that the parties

have to be given an opportunity to prosecute the proceedings on merits and

cannot be thrown out on technical grounds. Further the reasons mentioned by

the trial Court that since there is compliance of the order passed on Notice of

Motion No.845 of 2010, no interference was called for with the order restoring

suit, in my view, is unsustainable, as the said fact cannot be a consideration to

test the legality and propriety of the said order.

8 In that view of the matter so as to offer a proper opportunity to

the parties, the impugned order dated 11/6/2011 is required to be quashed

and set aside, and is accordingly quashed and set aside. Resultantly, the Notice

of Motion No.1840 of 2010 filed by the Defendants is required to be allowed

the consequence would be that the order passed on Notice of Motion No.845 of

2010 dated 11/6/2010 would stand set aside and the said Notice of Motion

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would be heard afresh by the learned Judge, City Civil Court, Mumbai. Since

the suit is of the year 2005, the learned Judge, Civil Court, Mumbai is directed

to hear and decide the said Notice of Motion within a period of six weeks from

the first appearance of the parties before him. The parties to appear before the

City Civil Court, Mumbai on 23/11/2011, on which day, the learned senior

counsel for the Petitioners states that an affidavit in reply to the said Notice of

Motion No.845 of 2010 would be filed by the Defendants in the City Civil

Court, Mumbai.

9 Rule is accordingly made absolute in the aforesaid terms with the

parties to bear their respective costs.

[R.M.SAVANT, J]