IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.66 of 2008. Chamber Summons No.66 of 2008. Chamber Summons No.66 of 2008. in in in Suit No.1355 of 1982. Suit No.1355 of 1982. Suit No.1355 of 1982. Manish Morarji Palan & Ors. ..Plaintiffs vs. Rajesh Gordhandas Palan & Ors. ..Defendants And Court Receiver, High Court, Bombay & Anr. ..Respondents Ms.M.V.Thakkar with R.V.Thakkar for the plaintiff. Mr.Vishwanathan Talkute for the Defendant No.1, and Defendant No.D-1 to D-III & 1(F) Mr. Shailesh Shah with Mr. Swapnil Bangur i/b. M/s. Vinod Mistry & Co. for the Defendant No.4 applicant. Mr. S.M.Mungekar, representative of the Court Receiver present. Coram : Dr.D.Y.Chandrachud, J. Coram : Dr.D.Y.Chandrachud, J. Coram : Dr.D.Y.Chandrachud, J. Dated : 28th January, 2008 Dated : 28th January, 2008 Dated : 28th January, 2008 P.C. 1. The relief that has been sought in the Chamber Summons is that: a) The delay of 29 days in paying the royalty for the month of December 2007 be condoned and the time be extended, and (b) That the amount of royalty and the society charges of Rs.42,450/- deposited with the Court Receiver by letter dated -2- 8.1.2008 be accepted as royalty for the months of December 2007 and January 2008. 2. The applicant has been appointed as agent of the Court Receiver. There have been numerous defaults in the past and at Exhibit A to the affidavit in reply is a statement reflecting the defaults committed by the applicant right from January 1991. An order was passed by Hon’ble Mrs. Justice Ranjana Desai on 25.10.2007 on a Notice of Motion taken out by the plaintiffs for a direction to the Court Receiver to take possession of the premises of shop No.10 since the applicant herein as agent of the Receiver had committed several defaults in paying the royalty regularly. When the motion came up for hearing, the parties agreed to an arrangement which is reflected in the text of the Order of the Court. Under the terms of the agreed Order the royalty was fixed at Rs.20,000/- per month and it was clarified that in addition the applicant-agent shall also pay the charges of the Co-operative Society. The amount of royalty was directed to be paid by the tenth day of each succeeding month. For the period ending 30.9.2007 there were arrears to the tune of Rs.20,516/- and -3- after crediting the deposit which was furnished to the receiver, the arrears were directed to be paid within two weeks. The agreed order thereupon contains the following direction: "It is clarified that if respondent No.4 makes any single default in paying the royalty amount, the agency agreement shall stand cancelled. As per the procedure, respondent No.4 will have to deposit three months advance royalty, which he shall do within one month." Now, it is an admitted position before the Court that three months advance royalty which was required to be deposited as security for the due performance of the obligations of the agency came to be deposited on 5.11.2007. The monthly royalty for the month of November 2007 which was due by 10.11.2007 was deposited on 29.11.2007. There was therefore a default even in the payment of the first instalment. The royalty for the month of December 2007 was not deposited at all during the course of the month of December and it was only on or about 8.1.2008 that an offer of payment was made. This was opposed by -4- the plaintiff on the ground that the order passed by this Court on 25.10.2007 was by consent of the parties and provided a self operative consequence to the effect that the agency agreement shall stand cancelled upon any single default. . The relief that has been sought in the Chamber Summons is for condoning the delay of 29 days in the payment of royalty for the month of December 2007 and for a consequential direction for the acceptance of a cheque amounting to Rs.42,450/-. Though, as a matter of principle Courts are in the interest of justice lenient in condoning delay, the relief that has been sought in the Chamber Summons can not in my considered view be granted for one or more than one reason. Firstly, the background in which the order dated 25.10.2007 came to be passed, is that there was a series of delays and a consistent pattern of default reflecting upon the want of bonafides on the part of the applicant. The plaintiffs were constrained to therefore take out a motion for a direction to the Receiver to take back possession from the agent. A consent order was passed on 25.10.2007 in which a specific direction was issued that if there was even a single default -5- in the payment of royalty, the agency agreement shall stand cancelled. The cancellation of the agreement therefore ensues as a result of the self-operative consequence which parties provided in agreeing to a consent order. Secondly, the explanation which has been furnished by the applicant in para 4 of the affidavit in support is that on 5.11.2007 three months advance royalty was deposited and the applicant was under the impression that this would cover the payment of royalty until January 2008. This explanation is on the face of it lacking in bonafides, because admittedly on 29.11.2007 the applicant deposited the royalty for the month of November 2007. If, as stated in paragraph 4 of the affidavit the applicant was under the impression that the deposit of advance royalty covered all royalty payments until January 2008, there was no occasion for the applicant himself to deposit the payment of royalty in the month of November 2007. Be that as it may, the conduct of the applicant shows that even for the month of November 2007 the payment of royalty was effected beyond the period stipulated. Strictly speaking, the consequence envisaged in the order of the court has already ensued upon the default which has been -6- committed in November 2007. The power of the court to enlarge time under Rule 265 of the Original Side Rules is an adjunct of justice. Such a power cannot be exercised in aid of a party who has been consistently in default and particularly in a case such as present, where the reason that has been adduced is lacking in bonafides. In these circumstances, no case has been made out for the grant of relief in the Chamber Summons. . The Chamber Summons is accordingly dismissed. (Dr.D.Y.Chandrachud, J.) (Dr.D.Y.Chandrachud, J.) (Dr.D.Y.Chandrachud, J.)