Bombay High Court
Northern India Alcobru Systems, ... vs Ion Exchange(India ) Limited., ... on 9 November, 2022
Bench: Makarand Subhash Karnik
13.ao.982-22.doc
PMB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
APPEAL FROM ORDER NO.982 OF 2022
signed by
PRADNYA
PRADNYA MAKARAND
WITH
MAKARAND BHOGALE
BHOGALE Date:
2022.11.09
17:29:02
+0530 CIVIL APPLICATION NO.100 OF 2022
Northern India Alcobru Systems,
through Partner Mr. Yashraj Barman ..Appellant
vs.
Ion Exchange (India) Limited
through Mr. Krushna Chandra Rath,
Senior Executive (Legal) ..Respondent
------------
Mr. R. P. Ojha i/b. Mr. S. P. Shukla for appellant.
Mr. Haresh K. Menghani for respondent.
------------
CORAM : M. S. KARNIK, J.
DATE : NOVEMBER 9, 2022.
P.C. :
1. Heard learned counsel for the parties.
2. The challenge in this Appeal is to an order dated
20.06.2017 passed by the City Civil Court, Greater Bombay.
A summary suit was filed by the respondent (original
plaintiff) for recovery of an amount of Rs.18,15,289/- with
interest under Order XXXVII of the Code of Civil Procedure,
1908. The appellant-original defendant filed an appearance
within the time. The Summons for Judgment was taken out
13.ao.982-22.doc
by the plaintiff. The reply to the Summons for Judgment
was not filed by the defendant within time. After a delay of
555 days, the defendant requested that the reply be taken
on record. The trial Court by the impugned order rejected
the notice of motion on the ground that the delay is not
properly explained.
3. It is pointed out by learned counsel for the defendant
that the parties were negotiating a settlement. It is pointed
out that factually it is correct that on the some dates the
advocate for the defendant did not appear but this was in
view of the impression that the settlement talks are in
progress. Learned counsel for the defendant submitted that
an opportunity to contest the Summons for Judgment
should not be denied as they are even willing to
compensate the plaintiff by paying cost. The delay,
according to the learned counsel for the defendant is not
intentional.
4. Learned counsel for the respondent on the other hand
invited my attention to the finding of the trial Court. It is
submitted by him that there is hardly any explanation for
13.ao.982-22.doc
the delay of 555 days in filing the reply. It is further
submitted by him that at every stage the defendant has
attempted to protract the litigation and even their advocate
was not present on several dates when the matter was
listed. It is submitted that the Summary Suit is of the year
2014 and the same is still at the stage of Summons for
Judgment. He prayed that the Appeal be dismissed.
5. I have gone through the impugned order. The delay in
filing the reply to the Summons for Judgment on the part of
the defendant is of 555 days. The trial Court has recorded
that the settlement talks were in progress. The trial Court is
justified in observing that the settlement talks being in
progress is not a ground for the defendant to have not filed
the reply. In my opinion, an opportunity needs to be given
to the defendant to file reply by condoning the delay as the
delay coupled with the circumstances on record is not such
that the same does not deserve to be condoned even by
imposing sufficient cost. There is no dispute that the
settlement talks were in progress. It is after the settlement
talks failed, that the defendant applied for filing of the reply.
13.ao.982-22.doc
From the facts on record, it is not possible for me to infer
that there has been any intentional default on the part of
the defendant in filing the reply to the Summons for
Judgment. In my opinion, the Appeal From Order deserves
to be allowed upon imposing cost of Rs.25,000/-. The cost
to be paid to the plaintiff within a period of two weeks from
today. The payment of cost is condition precedent to taking
the reply to the Summons for Judgment on record.
6. The Appeal From Order is allowed subject to cost as
indicated above.
7. The Notice of Motion No.4034 of 2016 is allowed. The
delay in filing the reply in Summons for Judgment is
condoned. The defendant is allowed to submit the affidavit-
in-reply in Summons for Judgment No.86 of 2015 within a
period of three weeks from today.
8. Considering that the suit is of the year 2014, the
learned trial Judge is requested to expedite the suit and
decide the same preferably within a period of one year from
today.
9. Learned counsel on behalf of the defendant
13.ao.982-22.doc
undertakes to co-operate with the trial Court in expeditious
disposal of the suit and will not seek unnecessary
adjournments.
10. Civil Application stands disposed of.
(M. S. KARNIK, J.)
