ASN 1 CHS-465.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.465 OF 2011 IN SUMMARY SUIT NO.4133 OF 1997 M/s. Armour Polymers Limited. ..Plaintiffs. Vs. M/s.V. Tribhovandas. ..Defendants. Mrs. Vandana Jaisingh i/by M/s. S. Satpute & Co. for Plaintiff. Mr. Vikram Sathaye i/by S.R.Rawell & Co. for Defendant. CORAM : R.M. SAVANT , J. DATE : 18th April, 2011 PC : By the above Chamber Summons the defendants seeks condonation of delay of 3409 days in filing the same and also seek setting aside of the order dated 28.8.2001 passed by the Prothonotary and Sr. Master rejecting that counter claim on account of non removal of the office objections. It is the case of the applicants/defendants that they had filed their written statement along with the counter claim on 8.5.2001 and the office on perusal of the same had raised certain objections, which were to be removed within time stipulated by the office. Since the objections were not removed, the learned Assistant Prothonotary by an order dated 14.8.2001 passed a conditional order that the office objections to be removed on or before 28.8.2001 failing which counter claim stands rejected under Rule 986. In view of the fact that the said objections were not removed the counter claim by the self operative ASN 2 CHS-465.sxw order passed by the Prothonotary stood rejected. It is case of the defendants that they were not informed by the previous Advocate Mr. Ashok Mody and therefore, they were under bonafide belief that the written statement and counter claim were on the file of the court. It is their case that they became aware about the rejection of their counter claim when the suit was listed before a learned Single Judge of this court, when they took inspection of the proceedings on 10.2.2011. In support of the defendants’ case the erstwhile Advocate of the defendants has filed his own affidavit which is dated 1.3.2011, wherein he has stated that he used to keep unwell on account of various ailments and also met with an accident in August, 2002. The reasons mentioned by the Advocate in the affidavit in support are sought to be questioned by the plaintiffs, but as can be seen from the affidavit in reply, the plaintiffs are more on the merits of the counter claim rather than the merits of the reasons mentioned by the defendants for consideration of delay in filing the above application. 2 It is well settled that in matters of condonation of delay a highly technical and pedantic approach should be eschewed and an approach which furthers the cause of substantial justice should be adopted. The above suit has not been set down for hearing. In fact, the issues have to be framed. In that sense, if the counter claim which has been dismissed for technical reasons is restored, in my view, no prejudice will be caused to the plaintiffs. ASN 3 CHS-465.sxw 3 It is also well settled that inconvenience if any caused to the other side can be adequately compensated by imposing costs. Reliance placed by the learned counsel appearing for the defendants in support of the chamber summons on the judgment of the Apex Court reported in (1998) 7 SCC 123 in the matter of N. Balakrishnan Vs. M.Krishnamurthy to the effect that the parties should not be made to suffer for the lapses of the Advocate, seems appropriate in the facts and circumstances of the present case. In that view of the matter, chamber summons is allowed and made absolute in terms of prayer clause (a)(b) and (c). Resultantly the counter claim is restored to file. The defendants are directed to remove the office objections, if any, within a period of three weeks from date. If the office objections are not removed as directed by this court, rejection of the counter claim would revive. 4 In the facts and circumstances of the case where there has been delay of about nine years in filing the above application, the plaintiffs are required to be adequately compensated. The defendants are therefore, directed to pay costs of Rs.10,000/- to the plaintiffs within a period of four weeks from date. The costs will be a condition precedent. If the costs are not paid as directed by this order, the benefit of this order will not ennure to the defendants and resultantly the above chamber summons would be deemed to have been dismissed. The defendants to furnish a copy of their written statement as well as counter claim to the plaintiffs within a period of four weeks from date. R.M. SAVANT, J.