Bombay High Court
M/S. Cvs Infrastructure Pvt.Ltd vs M/S. Hazel Mercantile Ltd on 29 November, 2022
Bench: K.R. Sriram, Kamal Khata
Digitally
signed by
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MEERA MAHESH
MAHESH JADHAV
JADHAV Date:
2022.12.02
10:46:34
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL APPEAL NO. 49 OF 2021
IN
NOTICE OF MOTION NO.1272 OF 2019
WITH
INTERIM APPLICATION (L) NO. 7867 OF 2021
IN
COMMERCIAL APPEAL NO.49 OF 2021
CVS Infrastructure Pvt Ltd. ....Appellant
V/s.
Hazel Mercantile Ltd. ...Respondent
----
Mr. Piyush Deshpande i/b Mr. Yash Jariwala for Appellant.
Mr. Amey Patil i/b Mr. Vivek M Sharma for Respondent.
----
CORAM : K.R. SHRIRAM &
KAMAL KHATA JJ
DATED : 29th NOVEMBER 2022
P.C. :
INTERIM APPLICATION (L) NO. 7867 OF 2021
1 Interim application is for condonation of delay in filing the appeal.
Keeping open all rights and contentions of respondents, the delay is
condoned.
2 Interim application disposed.
COMMERCIAL APPEAL NO. 49 OF 2021
3 Appeal is impugning an order pronounced on 20 th March 2020
rejecting appellant's notice of motion for condonation of delay in taking out
the notice of motion and also for recall of the order of dismissal and
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restoration of the suit. Appellant is the original plaintiff and respondent is
defendant. For convenience appellant is hereinafter referred to as plaintiff.
4 Plaintiff had filed a commercial summary suit. For the purpose of this
appeal, we need not go into the facts of the case.
5 The plaint was presented on 22 nd August 2013. Writ of summons was
served upon defendant on 11th September 2014, after almost 13 months.
On 17th September 2014 defendant entered appearance.
6 On 18th June 2015, since no one was present in the morning session,
the suit was passed over to the afternoon session. In the afternoon session
none appeared for plaintiff and, therefore, the court was pleased to stand
over the suit to 22nd June 2015 for dismissal.
7 On 22nd June 2015, notwithstanding the suit being listed under the
caption for dismissal, plaintiff chose not to appear and therefore, the suit
was dismissed.
8 On 21st July 2015, notice of motion was preferred for restoration of
the suit. When the said notice of motion was called out on 7 th October
2015, which was in the pre-lunch session, none appeared for plaintiff and
the notice of motion was dismissed. Post lunch, plaintiff's advocate
appeared and the notice of motion was restored to file.
9 On 23rd December 2015, the notice of motion for restoration came to
be allowed, the suit was restored to file and cost of Rs.15,000/- was
imposed.
10 On 24th June 2016, once again plaintiff chose to remain absent during
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the pre-lunch session and the suit came to be dismissed. In the post lunch
session, plaintiff appeared and the suit was restored to file.
11 On 21st March 2018 again when the matter was called out, none
appeared for plaintiff and the suit was dismissed for want of prosecution.
The order dated 21st March 2018 reads as under:
"None for the Plaintiff. This Suit was dismissed earlier on 22 nd June
2015 and restored to file by an order dated 23rd December 2015. The
Suit thereafter appeared before this Court on 24 th June 2016, when
nobody was present. Even the Summons for Judgment was not taken
out within six weeks of lodging of the plaint. Hence the suit was
dismissed. It was thereafter restored on the application made on
behalf of learned Counsel for the Plaintiff. On the same date at
03.00p.m., the Suit was restored to file. Even today none appears for
the Plaintiff. The Suit is dismissed for want of prosecution."
12 On 15th April 2019, after almost 13 months a notice of motion was
taken out by plaintiff for restoration. In the affidavit in support, the reason
for non appearance given was, the advocate took ill sometime in October
2018 upto November 2018. But the fact is the suit came to be dismissed on
21st March 2018 and in the affidavit in support, there is no explanation for
the delay between 21st March 2018 to 20th October 2018 and for not
appearing on 21st March 2018. In fact, paragraph 6 of the affidavit simply
says "the above suit was once again dismissed vide order dated 21 st March
2018 passed by this Hon'ble Court is annexed herewith as Exhibit D thereby
the commercial suit was dismissed."
13 Strangely, in the affidavit in support, it is stated as Advocate Mr.
Kamble does not regularly practise before the High Court and still appellant
being a corporate entity continued with Mr. Kamble. That Notice of Motion
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No.1272 of 2019 came to be dismissed by the impugned order dated 20 th
March 2020.
14 We have considered the impugned order with the assistance of
Counsel Mr. Deshpande and Mr. Patil. It is a very elaborate order and we
see no reason why we should interfere. One of the grounds raised in the
appeal is that a litigant ought not to be denied of having a lis determined on
merits unless he has, by gross negligence, deliberate inaction or something
akin to misconduct, disentitled himself from seeking the indulgence of the
court. In our view, there has been gross negligence on the part of appellant,
which has been noted and rightly so in the impugned order. In all such
matters, the onus is on appellant to explain and make out a sufficient cause
as to what prevented him from appearing on the date the matter was listed
and what prevented him from approaching the court expeditiously or atleast
with alacrity. In the affidavit in support of the notice of motion for
restoration of the suit, as noted earlier, it is stated the advocate took ill
between October 2018 to November 2018 but the suit was dismissed on 21 st
March 2018. There is no explanation, whatsoever, in the affidavit in
support. Notice of motion itself was lodged only on 15 th April 2019 and for
the delay, in paragraph 9 of the affidavit, the only explanation is " I say that
after receiving papers from Advocate Kamble, I met the present advocate on
record and entrusted the papers to her and requested her to take
appropriate steps and hence there is a delay of one year, i.e., 360 days as on
April 2019." There is nothing to state when the new advocate was
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approached, when Mr. Kamble returned the papers, when instructions were
given to the new advocate, etc. Therefore, the Learned Single Judge was
right in rejecting the notice of motion and we would also agree with the
Learned Single Judge that no sufficient cause or justification has been made
out by appellant for remaining absent on 21st March 2018 and for taking out
the notice of motion late.
15 In the circumstances, appeal dismissed.
16 Appellant to pay a sum of Rs.25,000/- as cost to respondents within 4
weeks from today. The amount shall be paid by way of cheque drawn in
favour of advocate on record.
(KAMAL KHATA, J.) (K.R. SHRIRAM, J.)
Meera Jadhav
