Bombay High Court
Jitendra R. Rampariya vs Ramesh K. Jain And 2 Ors on 11 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
11. COMS 217-17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUIT NO. 217 OF 2017
Jitendra R. Rampariya ...Plaintiff
V/s.
Amesh K. Jain and Ors. ...Defendants
Ms. Sapna Krishnappa i/b Mr. Suresh Dubey for Plaintiff.
Mr. Prathamesh Kamat withMr. Viral Thakur i/b L. J. Law for
Defendants No. 1 to 3.
CORAM : ABHAY AHUJA, J.
DATE : 11th JANUARY, 2024
P.C. :
1. Today when the matter is called out, Ms. Krishnappa, learned
Counsel appears for the Plaintiff and seeks some time to comply with
the directions given vide order dated 7th March, 2019.
2. Mr. Kamat, learned Counsel for the Defendants opposes the
request for time to comply with the directions submitting that by order
dated 7th March, 2019, the notice of motion taken out by the
Defendants to condone the delay of 164 days in filing the written
statement, was dismissed in view of the interpretation of the Order 8
Rules 1 and 10 of the Code of Civil Procedure, 1908, by the Hon'ble
Supreme Court in its judgment in the case of SCG Contracts (India)
Pvt. Ltd. Vs. K. S. Chamankar Infrastructure Pvt. Ltd and Ors 1 and
1 (2019) 12 SCC 210
11. COMS 217-17.doc
therefore, a similar interpretation be adopted so far as the provisions of
newly inserted Order 15A Rule 8 with respect to Case Management
Hearing and in particular concerning Consequences of non-compliance
with the orders of this Court.
3. Mr. Kamat, would further submit that the Court essentially has
three options in the case, where any party fails to comply with the
orders of the Court passed in a case management hearing; i) to
condone such non-compliance by payment of costs to the Court; ii)
foreclose the non-compliant party's right to file affidavit, conduct cross-
examination of witnesses, file written submissions, address oral
arguments or make further arguments in the trial, as the case may be
or iii) to dismiss the plaint or allow the suit where such non-compliance
is wilful, repeated and the imposition of costs is not adequate to ensure
compliance. Learned Counsel would submit that the directions to give
inspection to Defendants vide order dated 7 th March, 2019, were to be
complied with on or before 28th March, 2019, but till date no inspection
has been given by the Plaintiff. That on or before 5 th April, 2019,
Defendants were to give their statement of admission and denial but
since no inspection was given, no such statement could be filed.
Learned Counsel points out that by paragraph 4 of the said order dated
11. COMS 217-17.doc
7th March, 2019, the plaintiff was to file and serve list of witnesses as
well as affidavit in lieu of examination in chief of its witness and
compilation of documents on or before 27th April, 2019, which has also
not been complied with. Learned Counsel would, therefore, submit that
any indulgence to the Plaintiff should be subject to costs.
4. Mr. Kamat has relied upon the decision of the Hon'ble Supreme
Court in the case of SCG Contracts (India) Pvt. Ltd. Vs. K. S.
Chamankar Infrastructure Pvt. Ltd and Ors (supra). However, learned
Counsel fairly submits that the said decision specifically refers to the
provisions of Order 8 Rules 10 and in connection with the non filing of
the written statement and that the time to file the same cannot be
extended beyond the period of 120 days, after which the Defendants
forfeit the right to file the written statement and that the said decision
does not deal with the other provisions including with respect to the
case management hearing under Order 15A Rule 8.
5. Ms. Krishnappa, learned Counsel for the Plaintiff would submit
that although the order has not been complied with and there has been
a delay, some time be granted as and by way of last chance, so that the
directions can be complied with.
11. COMS 217-17.doc
6. On a query from the Court to the learned Counsel for the
Defendants, as to whether any communication was addressed to the
Plaintiff seeking inspection of the documents relied upon by the
Plaintiff pursuant to order dated 7 th March, 2019, Mr. Kamat, learned
Counsel for Defendants would submit that there was a communication
addressed much prior to the date of the said order, but learned Counsel
fairly submits that after the date or after 7 th March, 2019 no such
communication was addressed pursuant thereto, however, submitting
that the Plaintiffs, should have offered to do so.
7. I have heard the learned Counsel and considered the rival
contentions.
8. In my view, if the Defendants had communicated to the Plaintiff
to give inspection pursuant to order dated 7th March, 2019 and Plaintiff
would not have given such an inspection that certainly would go
against the Plaintiff and the invocation of Rule (8) of Order 15A could
have been considered. There is no doubt that there is a delay on the
part of the Plaintiff to comply with the said order, however, as and by
way of last chance, to the Plaintiff to comply with the directions, let the
Plaintiff give inspection of documents relied upon by them to them by
11. COMS 217-17.doc
25th January, 2024, let the service of list of witnesses and affidavit in
lieu of examination in chief of Plaintiff's witness along with
compilation of documents be completed by 1st February, 2024 and let
the statement of admission and denial of the Defendants to the
Plaintiff's documents be filed by the Defendants by 8th February, 2024
with a copy to the other side. List on 12th February, 2024 at 4.00 p.m.
for marking of Plaintiff's documents.
(ABHAY AHUJA, J.)
