R J D Impex Pvt. Ltd vs Priya Food And Flavours Pvt. Ltd
2024 Latest Caselaw 1093 Guj

Gujarat High Court

R J D Impex Pvt. Ltd vs Priya Food And Flavours Pvt. Ltd on 8 February, 2024

Author: Sunita Agarwal

Bench: Sunita Agarwal

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      C/SCA/20803/2023                            ORDER DATED: 08/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20803 of 2023

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                            R J D IMPEX PVT. LTD.
                                    Versus
                     PRIYA FOOD AND FLAVOURS PVT. LTD.
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 08/02/2024

                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard learned counsel Ms. Archana R. Acharya for

the petitioner and perused the record.

2. The instant petition under Article 227 of the

Constitution of India has been filed against the order dated

13.10.2023 passed by the Commercial Court in dismissing the

the application for delay condonation filed in restoration

application namely Commercial Civil Misc. Application No.

104 of 2023, seeking for condonation of delay of 2315 days in

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filing the restoration application, whereby the suit for

recovery has been dismissed for non-prosecution.

3. It is contended by the learned counsel for the

petitioner that the petitioner has instituted the suit for

recovery of Rs. 2,14,41,688/- in the year 2009. A copy of the

document termed as a Confession Deed on a stamp paper of

Rs.100 has been placed on record at page No.'77', to contend

that even the defendant had admitted the dues towards the

plaintiff. It is contended that the suit was being diligently

pursued by the plaintiff, however, upon transfer of the said

suit before the Commercial Court in the year 2016, the

plaintiff could not pursue the suit because of the illness of the

counsel, and, thereafter, negligence on the part of the

counsel appearing for the plaintiff.

4. The contention, thus, is that the plaintiff cannot be

non-suited for the fault of his lawyer. There is no delay or

negligence on the part of the plaintiff in pursuing the

proceedings, who was regularly keeping in contact with the

Advocate.

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5. Considering the same, we may note that the trial

Court has extracted the order dated 27.02.2017 of dismissal

of the suit, wherein it is noted that upon transfer of the suit

to the Commercial Court at City Civil Court, Ahmedabad on

30.09.2016, notice / process came to be issued to the parties

to the suit as well as learned Advocate for the plaintiff.

Inspite of due service with the notice / process, which is

evident from the report of the bailiff, the plaintiff had failed to

appear before the Commercial Court.

6. It is further argued that the trial Court has erred in

placing reliance in the case of Patel Shankarbhai Virabhai

and Ors. versus Patel Narayanbhai Ambalal and Ors.

decided on 10.11.2011 in Special Civil Application No.

27825 of 2007, is misplaced, as the facts of the said case

are completely different from the facts of the instant case,

inasmuch as, in the said case, the plaintiff had stepped into

the witness box and after the evidence-in-chief was over and

when the time came for defendant to cross-examine, the

plaintiff sought repeated adjournments and did not appear for

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the long time from the year 1989 to 1992. The reason for

dismissal of the said suit because of non-cooperation of the

plaintiff, cannot be applied in the instant case, where the suit

had yet not been proceeded and was only at the preliminary

stage of service of summons on the defendant. Learned

counsel for the petitioner has also placed on reliance on the

judgment passed by the Apex Court in the case of Rafiq and

Another versus Munshilal and Another reported in

(1981) 2 SCC 788.

7. We do not find any substance in the above

submissions. We may record that it was noted that the matter

was adjourned on various dates in the year 2016 and 2017,

and the plaintiff and its Advocate did not participate in the

proceedings uptil 27.02.2017, when it was dismissed for want

of prosecution noticing that the plaintiff has been grossly

negligent in pursing the suit. While rejecting the application

seeking for condonation of delay, it is noted by the trial Court

that by no stretch of imagination, the delay of 2,315 days in

filing the application for restoration can be condoned as in

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the name of substantial justice giving fair opportunity to the

parties, the Court cannot be asked to indefinitely wait for a

litigant or be expected to chase the litigant to pursue their

own cause. A litigant has to be vigilant for his own cause for

which he has has knocked the doors of justice. Once having

filed a suit in the Court of law, a litigant is expected not to

sleep and then woke from slumber, rather he is expected to

keep a close watch on the proceedings. It is also noted by the

Court that the applicant is not a layman rather it is a private

limited company which could have take note of the case

status which is available online.

8. Having noted the said reasoning given by the trial

Court for rejection of the application for delay, it may also be

noted that the defendant cannot be asked to participate in

such proceedings, which was not pursued by the plaintiff for

a period of more than eight years. We may also note from the

rojkam of the suit available on record at page '76-A to 76-F'

that the suit was instituted as a Summary Suit No.1205/2009

on 24.03.2009 through an Advocate of the plaintiff. The

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summons were issued to the defendant Nos. 1 to 3 on

30.06.2009. From the record of the proceedings, it may be

noted that on the application moved by the plaintiff, summons

were issued on 29.01.2014 and uptil the year 2015, the

plaintiff did not take steps for service of summons by

payment of the process fee. It may be noted from the order

dated 10.02.2015 which records that the plaintiff or his

Advocate had not taken any further proceedings to pay

process fee for service of summons and hence, the matter

was placed in the objection board. It seems that the suit was

ordered to be transferred on 19.07.2016 before the

Commercial Court.

9. From the above noted facts, it is evident that the

plaintiff was not vigilant and did not keep track of the

proceedings nor pursue the suit since the date of its

institution in the year 2009. For the aforesaid, we do not find

any error in the decision of the trial Court in rejection of the

application for delay on the above noted reasons.

10. No material irregularity or jurisdictional error could

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be found in the order of the trial Court. No case is made out

for invocation of supervisory jurisdiction under Article 227 of

the Constitution of India. The instant petition is, accordingly,

dismissed. All pending Application/s, if any, shall also stand

disposed of.

(SUNITA AGARWAL, CJ )

(ANIRUDDHA P. MAYEE, J.) AMAR SINGH