- 1 - cac-26-2011 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.26 OF 2011 IN CIVIL REVISION APPLICATION (ST) NO.32 OF 2011 WITH CIVIL APPLICATION NO.51 OF 2011 1 Bombay Latex & Dispensions Pvt. Ltd. ] A company registered under the Companies ] Act, 1956, having its registered office at ] 83-C, Dr. Annie Besant Road, Worli, ] Mumbai 400 018. ] 2 M/s. Narang Latex & Dispensions Pvt. Ltd. ] 3 M/s. Narang Hygienic Products Pvt. Ltd. ] 4 M/s. Narang Sales & Marketing Pvt, Ltd. ] 5 M/s. Narang Polymers Pvt. Ltd. ] 6 M/s. Narang Rubber Industries Pvt. Ltd. ] 7 Poopcee Sales & Marketing ] 8 Poopcee International ] .. Applicants V/s. 1 Jethalla Amritlal Doshi (deleted) ] 2 Vasantben Jethalal Doshi ] Adult, Occupation:- Business ] 3 Kirtikumar Jethalal Doshi ] Adult, Occupation:- Business ] 4 Maheshkumar Jethalal Doshi ] - 2 - cac-26-2011 Adult, Occupation:- Business ] Being the Trustees of J. A.Doshi Family Trust, ] being the proprietors of M/s. Shreyas ] Exhibitors, a firm trading at 305, Masjid ] Bunder Road, 1st Floor, Mumbai. ] 5 T. S. Narang ] 83-C, Dr. A. B. Road, Worli, ] Mumbai 400 018. ] 6 Robert Sequira, Advocate ] Carmel Society, St. John Baptist Road, ] Bandra, Mumbai 400 050. ] .. Respondents. Mr. P. S. Dani, for the Applicants. Mr. Vijaysingh Thorat, Sr. Counsel along with Mr. Ravi Kadam with Mr. Dipen Fura for Respondent Nos.2 to 4. Mr. R. Sequira, Respondent No.6 present. CORAM : G.S.GODBOLE,J. RESERVED ON : 4th OCTOBER, 2011 PRONOUNCED ON : 11th NOVEMBER, 2011. JUDGMENT:- 1 In this Civil Application, the learned Single Judge (Coram: D. G. Karnik, J.) had directed impleadment of the Advocate who had represented Applicants in the Small Causes Court. Accordingly, Advocate has filed reply and the Respondents have also filed reply. Affidavit in rejoinder has been filed by Mr. Lalit B. Narang, President of the Applicants. By my order dated 23rd September, 2011, the record of the Court of Small Causes was called for to verify the fate of the Applications - 3 - cac-26-2011 filed for certified copies. 2 Both these Civil Applications for condonation of delay have been lodged on 22nd December, 2010 and 23rd December, 2010 respectively. These Applications have been filed on the basis of application for certified copies which were filed on 16th November, 2010 for which the copies were delivered on 26th November, 2010. Pursuant to my earlier order dated 23rd September, 2011, the original record of the Court of Small Causes is produced which indicates that Applications for certified copies were indeed filed on 14th June, 2010 and the copies were ready on 19th June, 2010. This applications sere filed by earlier Advocate of the Applicants. The Applicants will, therefore, be entitled to the benefit of the time spent in preparing the said certified copies. 3 By calculating the delay in this manner, it will be clear that the delay is of 71 days in CRA No.32 of 2011 and 72 days in CRA (St.)No. 26 of 2011. 4 The Applicants have sought to contend that their Advocate had assured them that he would inform them as and when the Judgment is made available and pronounced and they came to know about the decree only on 15th October, 2010 when the Bailiff of the Small Causes - 4 - cac-26-2011 Court dispossessed them. 5 The Advocate for the Applicants has filed his affidavit in both the Civil Applications, giving entire history of the litigation. It is stated in paragraph 6 of the affidavit filed in C.A. No.51 of 2011 that :- “ I say that there no entry in my diary that the aforesaid Appeal No.273/07, 274 of 2007 Rev. Appl no.195/2007 and Cross Appeal No.7/07 were on board of the Appeal Court of the Small Causes Court. I say that either because of lack of communication about the matter having being adjourned to 9/6/10 not having been communicated to me by the Appellants/Applicants and/or by the Deponent of the said affidavit and/or J.J.Shah, who were required to remain present and/or due to inadvertence the entry has not been made in my diary on 9/6/10. Hereto annexed is the xerox copy of my diary dated 9/6/10 and marked Annexure VII. I respectfully submit that it was obligatory on the part of the said Deponent and or Mr. J.JShah to have informed me that the matter was kept for judgment before the Hon'ble Appeal Court of Small Causes and also to inform me the gist of the operative order concerning the time given by the Hon'ble Court. I submit that in the facts and circumstances mentioned above I have such no knowledge of the operative part or the said contents of the said judgment and or the operative part thereof which were within the knowledge of the said Deponent and/or his representative Mr. J. J. Shah who had made the said application dt. 27/10/10 viee Annexure VII hereto.” 6 In the said affidavit, it is stated that Applications for certified copies were filed on 14th June, 2010. It is necessary to note that in the affidavit in reply filed by the Respondent (Original Plaintiff), they have relied upon the reply dated 27th October, 2010 filed by Mr. Lalit Narang, - 5 - cac-26-2011 President of the Applicants as also the affidavit dated 27th October, 2010 filed by Mr. Jitendra Jivanlal Shah, representative of the Defendants. In the rejoinder which is filed, the President of the Applicants has stated thus:- “17:- .................. However, the fact remains that Mr. Robert Sequeirra admits that he was unaware about the date of the Judgment being 9/6/2010 and hence contention raised even by the other deponent that J.J. Shah and/or I should be deemed to be knowing of the date of 9/6/2010, have not been told so by the Advocate, therefore does not stand to reason. 18:- ............. I say and submit that the said Application dated 27th October, 2010 was dictated and prepared by Mr. Robert Sequerria himself and only filed under the signature of Mr. J. J. Shah. I say and submit that the said J.J. Shah was made to believe that the said Application was made only for the purpose of restoration of good/premises which had been illegally executed and the said Shah thinking the said Application for that purpose had signed on the same. I say and submit that, it is material to note that the Application filed by the present Deponent being Application for allowing the Petitioner to take back goods which is also affirmed on 27th October, 2010 and it has been placed as Exhibit “A” to the Affidavit filed by Shri Doshi clearly mentions that I was not aware about the Order passed by the learned Court on 9th June, 2010. I say and submit that the Application filed by me under my own signature clearly depicts true picture and I had prepared and signed the said Application/Affidavit. Having come to know of the same, Mr. Robert Sequeirra thereafter persuaded Mr. J. J. Shah to sing on the subsequent Application. I say and submit that the said Application was prepared mald fide by the said Mr. Robert Sequeirra only to prevent any further allegation being made against him and with a view to take defense, when he would be confronted with such assertions.” 7 Thus this shows that aforesaid Respondents have made - 6 - cac-26-2011 allegation against their own Advocate. It is not possible to lose site of the fact that the Advocate had, in fact, applied for certified copies on 14th June, 2010 but the delivery of the said copies were taken on 19th April, 2010 i.e. after this Court directed impleadment of the Advocate on 3rd April,2011. One thing is certain that, apparently, disputes and the differences had arisen between the Advocate for the Applicants in the Small Causes Court and the Applicants themselves and there was lack of communication, which is evident from the fact that though certified copies were applied for on 14th June, 2010, within five days of the impugned Judgment and Order and were ready on 16th July, 2010; till the date of dispossession in execution of the decree on 15th October, 2010, the delivery of the said copies has not been taken. Whether the Advocate for the Applicants should have himself taken delivery on his own or whether the Applicants should have followed up the matter with their Advocate are questions about the relation between the Advocate and the Applicants and there is no need to go into those aspects in great details. The fact remains that Advocate had applied for the certified copies on 14th June, 2010. 8 I have perused the Original applications from the record of the Small Causes Court and though the said applications have an - 7 - cac-26-2011 endorsement that the copies will be delivered on 19th July, 2010; that endorsement is not signed by any one. There is an earlier endorsement on the applications for certified copies to the effect that the certified copy would be delivered on 30th June, 2010 and that endorsement is made on 17th June, 2010 and the same has been signed by some one. It is possible that the said endorsement might have been signed by the Clerk of the Advocate for the Applicants Mr. Abdulla who had filed applications on 14th June, 2010. The endorsement on the applications clearly shows that the certified copy was not ready on the earlier assigned date i.e. 30th June, 2010 but the copy was ready only on 16th July, 2010. It is thus clear that on the date which was assigned for taking delivery of the copies i.e. 30th June, 2010, copy was not ready and this is observed from the fact that the Applications itself have the endorsement that the decree was signed on 13th July, 2010. It is thus clear that there was no further intimation given to the Advocate for the Applicants or to the Applicants that certified copy would be delivered on 19th July, 2010. Once the earlier time for handing over certified copy which was fixed on 30th June, 2010 had expired and in the absence of any further intimation about the preparation of the certified copies, neither Applicants nor their Advocate can be blamed. 9 In so far as condonation of delay is concerned, it is well - 8 - cac-26-2011 settled that the court has to take a liberal view to the extent permissible. Every day's delay is not required to be explained. The term sufficient cause for delay is to be construed liberally and the Court should not take pendantic approach. In this case, the decree has been executed and the Applicants have also been dispossessed in the month of October, 2011 and thereafter some efforts must have been made for filing Revision Applications and the same in fact has been filed within the statutorily prescribed period of 90 days from the date of dispossession. It is obvious that if the delay is condoned, some prejudice will be caused to the Respondent/ landlord in as much as the challenge to the decree passed in their favour which is already executed will become alive on condonation of delay. The Applicants were negligent in not following their matter and meeting their Advocate. However, for such a negligence for a brief period, Applicants can not be penalized by denying them chance to have an adjudication of their case before the Highest Judicial Forum in the State of Maharashtra. The prejudice caused to the Respondent/ landlord will have to be compensated in terms of money. 10 Hence, I pass the following order:- (a) Both the Civil Applications are allowed and the delay is condoned, subject to payment of costs of Rs.7,500/- in each application to - 9 - cac-26-2011 the Respondent/landlord. No costs would be payable to Respondent No. 6. (b) The payment of costs would be condition precedent. The costs shall be deposited in this Court within a period of eight weeks from today, failing which this order will stand automatically recalled and the Civil Applications will stands dismissed. (c) Only after costs are paid/deposited, Civil Revision Applications will be numbered. Respondent/landlord will be permitted to withdraw the costs without imposing any condition for withdrawal. (G.S.GODBOLE,J.)