Bombay High Court
Deepak Raheja vs Tikamdas Kukreja on 4 August, 2022
Bench: N. J. Jamadar
Digitally signed by
SWAROOP SWAROOP
SHARAD
31 ial 24316 of 2022.doc
SHARAD PHADKE
Date: 2022.08.05
PHADKE 20:05:34 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.24316 OF 2022
IN
SUMMONS FOR JUDGMENT NO.36 OF 2021
IN
COMM. SUMMARY SUIT NO.293 OF 2020
Deepak Raheja ... Applicant
and
Tikamdas Kukreja ... Plaintiff
Versus
Deepak Raheja ... Defendant
WITH
INTERIM APPLICATION (L) NO.24338 OF 2022
IN
SUMMONS FOR JUDGMENT NO.37 OF 2021
IN
COMM. SUMMARY SUIT NO.311 of 2020
Deepak Raheja ... Applicant
and
Tikamdas and Associates ... Plaintiff
Versus
Deepak Raheja ... Defendant
Mr. Ativ Patel with Mr.Harshad R. Vyas i/by AVP Partners, for Plaintiff.
Mr. Yash Momaya i/by ABH Law Associates, for Applicant/Defendant.
CORAM: N.J.JAMADAR, J.
DATE: 4th AUGUST, 2022
P.C.:
1. Heard the learned Counsel for the Applicant/Defendant and the learned
Counsel for the Plaintiff.
2. These applications are taken out to condone the delay in seeking leave to
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31 ial 24316 of 2022.doc
defend the Suit. The Writ of Summons was served on the Defendant on 21 st June,
2021 . The Defendant entered appearance on 28 th June, 2021. Thereupon, on 30th
June, 2021, the Plaintiff took out the Summons for Judgment, which was served on the
Defendant on 22nd July, 2021. However, the Defendant did not file an Affidavit
seeking leave to defend the Suit.
3. The Affidavit seeking leave to defend the Suit came to be served on the
Plaintiff on 16th June, 2022. As the Defendant had not taken out a separate application
seeking condonation, and a composite prayer of condonation of delay and grant of
leave was made in the Affidavit, upon objection on behalf of the Plaintiff, the
Defendant has taken out these Applications.
4. In the applications, it is asserted that on account of the exigencies of the
situation which arose due to Covid-19 Pandemic and the fact that the Applicant had
undergone a major surgery, the Applicant could not file the Affidavit seeking leave to
defend the Suit within the stipulated period.
5. An Affidavit in Reply has filed resisting the prayer for condonation of
delay. The substance of the resistance is that no sufficient case is made out for
condonation of delay.
6. I have heard the learned Counsel for the Applicant and the learned
Counsel for the Plaintiff. The learned Counsel for the Applicant submitted that,
strictly construed, the delay is only of 18 days, as in view of the suspension of the
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period of limitation pursuant to the order of the Supreme Court in the case of Suo
Motu Writ Petition (C) No.3 of 2020 dated 10 th January, 2022, the Defendant could
have filed an Affidavit seeking leave to defend the Suit by 30th May, 2022.
7. The learned Counsel for the Plaintiff controverted the submission. It
was urged that since the Defendant had participated in the proceeding, the Defendant
cannot now urge the ground of pandemic to seek extension of period of limitation.
8. I have considered the assertions in the Application and the contentions
in the reply. Evidently, there is a delay in filing the Affidavit seeking leave to defend
the Suit even beyond the extended period of limitation granted by the order of the
Supreme Court. At this juncture, I do not deem it necessary to delve deep into the
aspect as to whether the Defendant could seek the benefit of the order of the Supreme
Court despite having entered appearance on 28th June, 2021.
9. The substance of the issue cannot be lost sight of. It is trite that the
courts lean in favour of condonation of delay so as to advance the cause of substantive
justice. The overarching principle is that the procedure which is a handmaid of justice
should not be allowed to score a march over the substantive justice. The reasons
assigned in the Applications for condonation of delay appear to be justifiable. Hence,
I am inclined to allow the Applications for condonation of delay in filing the Affidavit
seeking leave to defend the suit subject to payment of costs of Rs.25,000/- by the
Defendant to the Plaintiff. Hence, the following order :
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ORDER
(i) The Application stands allowed.
(ii) The delay in filing the Affidavit seeking leave to defend the suits
stand condoned subject to payment of consolidated costs of Rs.25,000/- by the
Defendant to the Plaintiff within two weeks from today.
(iii) Upon payment of the aforesaid costs, the Affidavits in Reply be
taken on record.
(iv) The Plaintiff is at liberty to file Affidavits in Rejoinder within a
period of two weeks of the payment of costs.
(v) List the Summons for Judgment on 8th September, 2022 for
hearing.
( N.J.JAMADAR, J. )
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