Ajay Kanoria And 2 Ors vs Tony Guinness And Anr
2019 Latest Caselaw 66 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                IN ITS ORDINARY ORIGINAL CIVIL JURISDICTION

                     CHAMBER SUMMONS NO.1441 OF 2016
                                     IN
                    EXECUTION APPLICATION NO.715 OF 2010

    Ajay Kanoria & Ors.                                       ...Applicants
    In the matter between
    Ajay Kanoria & Ors.                                       ...Claimants /
                                                              Judgment Creditors
                     versus
    Tony Guinness & Anr.                                      ...Respondents /
                                                              Judgment Debtors.
                                             .......

• Gaurav Mehta a/w. Ajay Hailkar i/b. M/s. Bachubhai Munim & Co., for the Claimant / applicants.

• Mr. Chirag Bhatia i/b. Advani & Co., for the respondents.

                                  CORAM:           R. I. CHAGLA J.
                                  DATE   :         14th NOVEMBER, 2019
    P.C. :

This Chamber Summons has been taken out for

recalling exparte order dated 8/5/2015 passed by this Court by

which the Execution Application No.715/2010 was dismissed for

non prosecution under Rule 329 of the High Court (Original Side)

Rules, 1980 and for restoration of the Execution Application

No.715/2010 to file. It appears that by a common order dated

8/5/2015 several Execution Applications listed before this Court

Mamta Kale

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were directed to be proceeded with within four weeks or else the

applications would stand disposed of as dismissed without further

reference to this Court under Rule 329 of the High Court (Original

Side) Rules.

2. It has been stated in affidavit in support of the

Chamber Summons that board of the Learned Single Judge was

discharged on 8/5/2015 and the claimant was under the

impression that the matter would be listed thereafter. However,

since the Execution Application was not listed for some time, after

last listed on 8/5/2015, the claimant's Advocate checked the

Court's status on High Court's website and it is only then on the

13/6/2016 that the claimants learnt that the aforesaid Execution

Application had been dismissed by the said order. It is stated that

there was no intentional default by the claimants and the

claimants are desirous of proceeding with their Execution

Application.

3. This Chamber Summons is opposed by the

respondents. The learned Counsel to the respondent submits that

there has been negligence on the part of claimant's Advocate who

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had checked the website after lapse of a year of the Execution

Application having been dismissed on 8/5/2015. The claimant's

Advocate learnt of the dismissed on 13/6/2016 after checking the

website and despite which the current application was moved one

month later on 18/7/2016. He has submitted that the applicant

be directed to pay cost in the event this Court is inclined to made

Chamber Summons absolute.

4. Having considered this submission, it appears from the

exparte order dated 8/5/2015 that several Execution Applications

were listed before this Court on that date and common order was

passed granting four weeks time to the Applicant to proceed with

the Execution Application or otherwise, the applications would

stands disposed of as dismissed without further reference to the

Court under Rule 329 of the High Court (Original Side) Rules. It

appears from the affidavit in support of the Chamber Summons

that the applicant was not aware of the exparte order dated

8/5/2015 and became aware much later when the claimant's

Advocate checked the case status on the High Court's website. On

13/6/2016, the claimant's learnt that the Execution Application

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had been dismissed by the said order. Considering that there was

no intentional default by the claimant and that the said order

dated 8/5/2015 was an exparte order whereby several Execution

Applications had been taken up together and in the absence of

applicants, adjourned by four weeks upon the direction that

Advocate for the applicants / parties shall proceed with the

Execution Application or otherwise they would be dismissed. It

appears that the Applicant had all along thought that the board

had been discharged on that date and the Execution Application

was still to come up before this Court. It was only much later on

checking the website of this Court that the Applicant became

aware of the dismissal. Hence, in the interest of justice, it will be

appropriate to restore the Execution Application to the file by

granting prayer clause (b) in the Chamber Summons. The delay in

taking out the Chamber Summons is also condoned. Accordingly,

the Chamber Summons is made absolute in terms of prayer clause

(a) and (b) and is disposed of.

(R. I. CHAGLA J.)