1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO. 6 OF 2007 IN APPEAL NO. 782 OF 2006 IN NOTICE OF MOTION NO. 2618 OF 2006 IN SUIT NO. 1154 OF 1992. 1. Vidyut Enterprises ] a partnership firm carrying on business at ] 5 Gyan Nagar, Lokmanya Tilak Road, ] Borivali (W), Bombay- 400 092. ] 2. Manjuulaben Nagraj Jain of ] Bombay, Indian In habitant, ] Residing at 402, Shree Shubh Apartment, ] ‘B’ Wing, L.T. Road, Borivali (W), ] Bombay-400 092. ] 3. Parasmal Roopchand Shah of ] Bombay, Indian Inhabitant, ] Residing at Room No.15, ] Natraj Market, Malad, ] Bombay-400 064. ] ..Petitioners. v/s. 1. Popatlal Fulchand Sundesha. ] 2. Basant Fulchand Jain ] 3. Mahendra Fulchand Jain ] 4. Subash Fulchand Sundesha, all of Bombay ] Indian Inhabitant, Carrying on business ] at 206, Creative Industrial Estate, ] N.M. Joshi Marg, Bombay-400 011. ] 5. Pushpaben Babulal Baldota of Bombay ] And Rajasthan, Indian Inhabitant, residing at ] Subhash Road, Falna, Rajasthan. ] 6. Prakash Suganchand Mehta of Bombay ] 2 Golwad Indian Inhabitant, residing at ] Post Golwad, District Thane. ] 7. Bastimal Sagarmal Jain of Bombay ] Residing at 5 Gyan Nagar, Lokmanya Tilak ] Road, Borivali (W), Bombay-400 092. ] 8. Nirlem Investment Pvt. Ltd. ] 9. Tanna Estates Pvt. Ltd., Both having ] Registered Office at 11A, Nathalal Parekh ] Marg, Bombay-400 039. ] ..Respondents. WITH REVIEW PETITION NO. 7 OF 2007 IN APPEAL NO. 783 OF 2006 IN NOTICE OF MOTION NO. 2172 OF 2006 IN SUIT NO. 1154 OF 1992. Bastimal Sagarmal Jain of Bombay ] Residing at 5 Gyan Nagar, Lokmanya Tilak ] Road, Borivali (W), Bombay-400 092. ] ..Petitioner. v/s. 1. Popatlal Fulchand Sundesha. ] 2. Basant Fulchand Jain ] 3. Mahendra Fulchand Jain ] 4. Subash Fulchand Sundesha, all of Bombay ] Indian Inhabitant, Carrying on business ] at 206, Creative Industrial Estate, ] N.M. Joshi Marg, Bombay-400 011. ] 5. M/s. Vidyut Enterprises ] a partnership firm carrying on business at ] 5 Gyan Nagar, Lokmanya Tilak Road, ] Borivali (W), Bombay- 400 092. ] 6. Manjuulaben Nagraj Jain of ] 3 Bombay, Indian In habitant, ] Residing at 402, Shree Shubh Apartment, ] ‘B’ Wing, L.T. Road, Borivali (W), ] Bombay-400 092. ] 7. Pushpaben Babulal Baldota of Bombay ] And Rajasthan, Indian Inhabitant, residing at ] Subhash Road, Falna, Rajasthan. ] 8. Parasmal Roopchand Shah of ] Bombay, Indian Inhabitant, ] Residing at Room No.15, ] Natraj Market, Malad, ] Bombay-400 064. ] 9. Prakash Suganchand Mehta of Bombay ] Golwad Indian Inhabitant, residing at ] Post Golwad, District Thane. ] 10. Nirlem Investment Pvt. Ltd. ] 11. Tanna Estates Pvt. Ltd., Both having ] Registered Office at 11A, Nathalal Parekh ] Marg, Bombay-400 039.: Respondents ] ..Respondents. ... Mr. G. K. Kerkera, i/b. M/s. A. V. Jain Associates, for Petitioners in both Review Petitions. Mr. G. Joshi, with Mr. Simil Purohit with Ms. Kanchan Shivkar, i/b. Gajria & Co., for Respondents in both Review Petitions. ... CORAM: S. A. BOBDE & S. J. KATHAWALLA, JJ. RESERVED ON : 8TH DECEMBER 2009. PRONOUNCED ON : 18TH DECEMBER 2009. JUDGMENT : The above review petitions are filed by the petitioners seeking review of the order dated 22nd December 2006. By the said order, the applications of the petitioners to extend time, allowing them to make 4 the payment of costs of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) to the respondents, was rejected on the ground that the petitioners were unable to produce the pay order before the Court at the time of making of the said application. 2. The facts as the record shows are as under :- (i) The review petitioners are the original defendants in Suit No.1154 of 1992. The respondents in the review petition are the original plaintiffs in the said Suit No. 1154 of 1992. The said Suit No. 1154 of 1992 was filed by the respondents inter-alia seeking that the agreement between the respondents and the petitioners dated 31st December 1991 be declared to be valid and binding on the petitioners. In the said suit, the respondents also sought that the petitioners pay to the respondents dues amounting to Rs.50,89,114/- with interest at the rate of 21% per annum till the date of redemption. The respondents have also sought a declaration that the repayment of the said dues is secured by a valid and subsisting equitable mortgage of the property described in Exhibit ‘A’ to the plaint. Alternatively, respondents have prayed that it be declared that a sum of Rs.1,96,89,114/- with further interest at the rate of 21% till the date of redemption and thereafter, is payable by the petitioners to the respondents. Other interim and ad-interim reliefs were also prayed for. (ii) Since the petitioners had not filed their written statements in the suit, a notice of motion being No.2618 of 2006 was inter-alia taken out for condonation of delay in filing the written 5 statements and for orders to permit the petitioners to file their written statements. However, the learned Single Judge [Coram :- S.K. Shah, J.] dismissed the notice of motion and kept the suit for recording of evidence. (iii) Against the said order passed by the learned Single Judge dated 27th September 2006 dismissing the petitioners’ Notice of Motion No.2618 of 2006, the petitioners filed appeals being Appeal No. 782 of 2006 and Appeal No.783 of 2006. The said appeals came up before the Division Bench comprising of R.M. Lodha, J. and one of us (S.A. Bobde, J.). The Division Bench by its order dated 21st November 2006 by consent of the parties condoned the delay in filing the written statement and the petitioners were directed to file their written statements subject to payment of a sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only) as costs to the respondents within two weeks. The Division Bench also expedited the hearing of the suit. (iv) On 4th December 2006, the Constituted Attorney of the petitioners admittedly tendered a pay order to the Advocate for the respondents, issued in the name of the plaintiff Popatlal Fulchand Sundesha. However, alongwith the name of the plaintiff, the words “and others” was also included in the pay order. The Advocate for the respondents, therefore, refused to accept the pay order. Thereupon, the Constituted Attorney of the petitioners forthwith issued a cheque dated 4th December 2006 of Rs.1,50,000/- in favour of M/s. Gajria & Co., Advocate for the respondents. The following day, the Advocate for the 6 petitioners by his covering letter dated 5th December 2006 returned the pay order to the Bank, which pay order was rejected by the Advocate for the respondents alongwith a request to cancel the said pay order and to transfer or credit the amount of said pay order to the account of the Constituted Attorney maintained by the said Bank. However, before the amount of the pay order could be transferred to the account of the Constituted Attorney of the petitioners, the cheque issued to the Advocate for the respondents was presented for payment and dishonoured due to ‘insufficient funds’. (v) The Advocate for the respondents by his letter dated 9th December 2006 informed the Advocate for the petitioners that the cheque dated 4th December 2006 had been dishonoured. On being so informed, the Constituted Attorney of the petitioners obtained another pay order dated 9th December 2006 bearing No.846777 and under a covering letter dated 11th December 2006 forwarded the said pay order to the Advocate for the respondents. However, the Advocate for the respondents under his covering letter dated 11th December 2006 returned the pay order dated 11th December 2006 to the Advocate for the petitioners on the ground that the petitioners were required to pay the said amount towards cost on or before 4th December 2006, and having failed to do so the pay order cannot be accepted on 11th December 2006. (vi) The petitioners, therefore, by a precipe mentioned the matter before the Division Bench comprising of R.M. Lodha and S.A. 7 Bobde, JJ. on 12th December 2006 and sought directions against the respondents to accept the said pay order. However, when the Division Bench asked the petitioners to produce the said pay order, the Advocate for the petitioners was not in a position to do so as the said pay order was apparently lying with the Constituted Attorney of the petitioners who was not present in Court at the time of making the said application on 12th December 2006. The Division Bench hence rejected the application by an order dated 22nd December 2006 on the ground that the pay order was not produced by the petitioners on being asked to do so at the time of making of the said application. (vii) The petitioners by another precipe dated 12th January 2007 once again made an application on 15th January 2007 before the Division Bench comprising of R.S. Khandeparkar and D.Y. Chandrachud, JJ. However, the Division Bench was of the view that the reliefs prayed for by the petitioners would amount to seeking modification of the earlier order of Court dated 22nd February 2006 and could hence only be granted by the Bench of the Court, which has passed the order. The petitioners then filed the above review petitions on 24th January 2007. (viii) The Hon’ble Chief Justice by his order dated 17th April 2007 assigned the review petitions to the Division Bench of J.N. Patel and A.A. Sayed, JJ. By an order dated 7th September 2007, the Division Bench of J. N. Patel and A.A. Sayed, JJ. directed the petitioners to get the matter assigned to a Special Bench of which S. A. Bobde, J. is a 8 member. Hence, the petitioners got the review petition assigned before this Bench praying for modification of the said order dated 22nd December 2006. 3. We have heard the Advocates appearing for the parties. We need not delve into the law relating to filing of a Written Statement before a Court and the time period in which it must be done, as the delay by the petitioners in filing the written statement in the original suit, was already condoned by this Court, in Appeal No. 782 of 2006 and Appeal No.783 of 2006, subject to payment of costs of Rs. 1, 50, 000/- by the petitioners to the respondents, within two weeks time. It seems that due to a compounding number of aforestated unfortunate circumstances, the petitioners were unable to pay the said costs to the respondents, although from the facts and evidence before us, it is clear they have made every effort to do so. As regards filing of the review petition, the petitioners did so in January 2007 itself, but due to administrative delay in constituting a Bench to hear the petition, almost two years have passed. The petitioners have done their part by filing the review petitions within reasonable time and cannot be blamed for the delay that occurred thereafter. 4. The application made before the Court, on 22nd December 2006, was dismissed because the petitioners were unable to provide a copy of the Pay Order, at the time of mentioning of the appeal, when called upon to do so. It seems that when the application was made, the Constituted Attorney, who was in possession of the said Pay Order was 9 not present in Court. Subsequently, the petitioners have submitted a copy of the said Pay Order, dated 9th December 2006, along with the covering letter, dated 11th December 2006, which the respondents had refused to accept. The copy is annexed at Exhibit E of the petition. We have also seen Exhibit F, which is the letter sent to the petitioners, by the learned advocate for the Respondents, refusing to accept the said Pay Order as the date for payment, i.e. 2 weeks from the date of the Court Order, dated 22nd December 2006, had elapsed on 4th December 2006. In the light of this evidence and in the absence of any replies to the review petition by the respondent, we can conclude that the petitioners were indeed in possession of a pay order dated 9th December 2009 which he was unable to produce before the Division Bench on 22nd December 2006 and the application for extension of time to make payment was rejected on the sole ground that the petitioners were unable to produce the pay order in Court on 22nd December 2006. 5. We feel that the suit involves high stakes for both parties and it would not be in the interest of justice to dismiss the suit merely on ground that the learned Advocate for the petitioners could not produce this copy of the Pay Order at the time of the making of the application on 22nd December 2009. It is however correct that the petitioners delayed in payment of the costs of Rs. 1, 50, 000/- to the respondents by about seven days in view of the aforestated mistakes on their part. There was then further delay and inconvenience caused by the petitioners being unable to 10 produce the said Pay Order, on the date of mentioning of the Appeal. We feel that it is hence reasonable to impose an additional cost of Rs. 25, 000/- on the petitioners to be paid to the respondents. 6. The review petitions are, therefore, allowed to the extent that the order, dated 22nd December 2006, dismissing the applications to direct the respondents to accept the Pay Order is set aside. However, the petitioners are directed to pay costs of Rs. 1, 75,000/-, which includes additional costs of Rs. 25,000/-, to the respondents within one week from today. The petitioners shall also forward copies of the written statements to the Advocate for the respondents alongwith the pay order within one week from today. In the event of the petitioners failing to comply with the directions given herein the review petitions shall stand dismissed without reference to this Court. Upon payment of the said amount by the petitioners to the Advocate for the respondents and production of the necessary acknowledgement by the petitioners, office to take the written statements of the petitioners on record. 7. Parties agree that the suit be disposed of by the end of May 2010. Needless to add that the undertaking given and recorded in the order dated 21st November 2006 shall continue. ORDER ACCORDINGLY. (S. A. BOBDE, J.) (S. J. KATHAWALLA, J.)