1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.1963 OF 2000 IN CONTEMPT NOTICE OF MOTION NO.929 OF 1995 IN COMPANY PETITION NO. 128 OF 1985. Mahendra Kumar Sanghi. ..Petitioner. vs. Ratankumar Sanghi & Ors. ..Respondent/Applicants. And Sanghi Motors (Bombay) & Ors. ..Contemnors. .... Mr. Sandeep Parikh, a/w. Mr. Rajeev Ravi, i/b. Bilawala & Co., for Applicant/Respodent Nos.1, 3 & 29. Mr. Milind Sathe, Senior Counsel, a/w. Mr. Nimay Dave, i/b. Bachubhai Munim & Co., for Contemnors. .... CORAM : S.J.KATHAWALLA, J. DATE : 4TH SEPTEMBER 2009. P.C. This notice of motion is taken out by the respondent nos. 1, 3 and 29 for condonation of delay of 590 days and setting aside the order dated 9th October 1998 passed by this Court [Coram : R.M. Lodha, J.], dismissing contempt notice of motion no.929 of 1995 for default and for restoration of contempt notice of motion on file. 2. After the contempt notice of motion was dismissed on 9th October 1998, an oral application was made on 23rd November 1998 for restoration of the motion by the Advocates 2 for the respondent nos. 1, 3 and 29, when they were informed to take out an appropriate application. The notice of motion is thereafter taken out only on 6th July 2000, i.e. after almost two years. 3. In the affidavit in support of the notice of motion, it is alleged that the earlier Advocates for the respondent nos. 1, 3 and 29 never informed the respondent nos. 1, 3 and 29 that the contempt notice of motion was dismissed. Whenever the respondent nos. 1, 3 and 29 inquired with their earlier Advocates, they informed them that the said contempt notice of motion is not due for hearing. The earlier Advocates did not care to appear before this Court [Coram : R.M. Lodha, J.] and only when they came to know about the dismissal of the contempt notice of motion, they moved an oral application on 23rd November 1998 for restoration of the above contempt notice of motion when they were granted liberty to take out an appropriate application. Even after making the said oral application before this Court on 23rd November 1998 for restoration of the contempt motion, the earlier Advocates of the respondent nos. 1, 3 and 29 did not bother to make an application for restoration of the contempt notice of motion. It is further alleged that on 30th May 2000, a search of all the papers and proceedings in the Court was taken by the present Advocates for the respondent nos. 1, 3 and 29 and it was at that 3 time, the respondent nos. 1, 3 and 29 came to know that the contempt notice of motion was on 9th October 1998 dismissed for default. 4. The respondent nos. 1, 3 and 29 have in paragraph 3 of their rejoinder stated “ I say that whenever we inquired with M/s. Apte and Company about the status of the matter, we were informed that the matter was still pending and hence, we continued to believe that the matter would come up in due course. As we were dis-satisfied with our former Advocates M/s. Apte and Company, we engaged the present Advocates and it was only then we learnt that the said contempt notice of motion had been dismissed and hence, this application came to be filed.” What is important to note here is that if the respondent nos. 1, 3 and 29 continued to believe that the matter would come up in due course as represented by their earlier Advocates, the question of respondent nos. 1, 3 and 29 being dissatisfied with their earlier Advocates and engaging the present Advocates does not arise. In the affidavit in support of the notice of motion, no explanation is given as to what made/prompted the respondent nos. 1, 3 and 29 to take away the papers from their earlier Advocates and hand them over to their present Advocates, since according to the respondent nos. 1, 3 and 29, the earlier Advocates had never informed them about the dismissal of the contempt petition and had only 4 informed them that the matter would come up in due course. 5. Though the respondent nos. 1, 3 and 29 have made very serious accusations amounting to grave professional misconduct against a reputed Firm of Advocates/ Solicitors, interestingly, not a single letter appears to have been addressed by the respondent nos. 1, 3 and 29 to their earlier Advocates recording their alleged conduct and seeking an explanation after taking search of Court papers. No complaint alleging professional misconduct has been filed by the respondent nos. 1, 3 and 29 against their earlier Advocates before the Bar Council or before the Incorporated Law Society, in the last nine years. 6. The respondent nos. 1, 3 and 29 have whilst attempting to shift the entire blame on their earlier Advocates sought to portray themselves as very conscientious litigants/clients, who wants this Court to believe that because the contempt motion filed by them did not reach hearing for about two years, they were dissatisfied with their earlier Advocates and engaged their present Advocates. However, their subsequent conduct, i.e. conduct after filing the present notice of motion for restoration (9 years back) through their present Advocates belies what is sought to be portrayed by them. The present notice of motion was filed on 6th July 2000 by 5 the respondent nos. 1, 3 and 29 through their present Advocates, seeking condonation of delay and restoration of the contempt motion. Admittedly, since the year 2000, no steps were taken to have the present notice of motion placed on Board, until on 3rd February 2005 when the same appeared before this Court [Coram : D.G. Karnik, J.], when the respondent nos. 1, 3 and 29 who claim to be very much concerned about their matter, filed their rejoinder dated 19th July 2001 before the Court on 3rd February 2005. On that day, no orders were passed. In response to a query by the Court as to what steps were taken by the respondent nos. 1, 3 and 29 after 3rd February 2005, this Court is informed that in the year 2007 that is two years after the matter appeared before this Court, and seven years after the present motion is filed, the respondent nos. 1, 3 and 29 through their present Advocates tendered a praeceipe to the Court office with a request to produce the notice of motion before this Court [Coram : Dr. D.Y. Chandrachud, J.] on Tuesday, 17th July 2007 at 11.a.m. as the applicants were desirous to make an application for urgent orders / directions in the above notice of motion. When this Court again enquired as to what happened to the application made on 17th July 2007 before this Court, the learned Advocate appearing for the respondent nos. 1, 3 and 29 is unable to give any answer or to produce any order of this Court dated 17th July 2007. 6 7. From the aforesaid facts and chronology of events, it is established that the respondent nos. 1, 3 and 29 have not made out any case for grant of reliefs sought in the above notice of motion. The respondent nos. 1, 3 and 29 themselves have, right since inception, not bothered to pursue their contempt notice of motion filed in the year 1998 through their earlier Advocates as well as the notice of motion filed in the year 2000 (9 years back) through their present Advocates. The respondent nos. 1, 3 and 29 have only with a view to cover up their callous conduct, and to create some excuse whilst seeking condonation of delay in filing the present notice of motion and seeking restoration of contempt notice of motion dismissed on 9th October 1998, discharged their earlier Advocates, appointed new Advocates and have filed an affidavit making serious allegations of professional misconduct against their earlier Advocates, to enable them to argue that the respondent nos. 1, 3 and 29 who are the litigants should not be made to suffer for the fault of their earlier Advocates. 8. As stated earlier, not a single letter is produced to show that the respondent nos. 1, 3 and 29 have recorded the alleged conduct of their earlier Advocates and/or have sought an explanation from them as regards their alleged conduct. The notice of motion is not directed against the said Advocates nor 7 are they served with a copy of the present notice of motion alongwith the affidavit in support thereto. In view thereof, allowing the present notice of motion would tantamount to accepting the serious allegations of misconduct levelled against legal professionals without them being aware of the fact that such serious allegations are made by the respondent nos. 1, 3 and 29 against them in the present proceedings. This will cause grave harm and prejudice to the reputation of the earlier Advocates of the respondent nos. 1, 3 and 29 and will give an impetus to the much prevalent trend of discharging Advocates, appointing new Advocates, shifting the blame on earlier Advocates for orders of dismissal in default, or ex-parte decrees passed, and thereafter file applications seeking setting aside of such orders/ decrees, without the earlier Advocates’ knowledge that he is blamed for acts which he is not responsible for. 9. For the aforesaid reasons, notice of motion no.1963 of 2000 is dismissed with costs. [ S.J.KATHAWALLA, J. ]