-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1486 OF 2008 IN SUIT NO. 2682 OF 1990. Dhanjishah M. Neterwala & Anr. ..Plaintiffs. Versus Norinco Pvt. Ltd & Others. ..Defendants. AND Meena Mohan Duggal. ..Respondent. ------- Mr. Zubin Kamdin i/b M/s. Bharucha & Partners for the Plaintiffs. Mr. K. Jagose i/b M/s. Vikram Philip & Associates for the defendant nos. 1 to 3. Ms. J. M. Sidhwa a/w Ms.Nina Kapadia i/b M/s. Pandya Gandhi & Co., for the Respondent. Coram : R. V. MORE, J. Date : January 7, 2010. P. C. : 1. The present Chamber Summons is taken out by the plaintiffs for setting aside the abatement of the suit as against the defendant no.2 by condoning the delay. 2. Defendant no.2 expired on 11th May 2001. The present Chamber Summons is filed on 4th October 2008, i.e., after more than 7 and ½ years of the demise of the defendant no.2. Affidavit of the plaintiff no.1 was filed in support of the Chamber summons. A solemn statement was made by the plaintiff no.1 in paragraph no.4 that the plaintiffs were not aware of the death of the defendant no.2 till 30th July 2008. 3. Defendants by filing reply denied the contentions of the plaintiffs that they were not aware of the defendant no.2’s death. Positive statement -: 2 :- was made by the defendant that the plaintiff no.1 was well aware of the death of the defendant no.2 way back in July 2001 and inspite of this position, the present Chamber Summons is filed after more than 7 years without showing any sufficient cause. The defendants relied on document at Exhibit-A, i.e., the Minutes of the meeting of the Board of Directors of the defendant no.1 – Company. Under item no. 2 of the minutes of the said meeting, the note is taken of the sad demise of defendant no.2- director of the company. It is further mentioned that defendant no.2 was a director in the defendant no.1 company in which the plaintiff no.1 is also director for 30 years. 4. The plaintiff thereafter filed a rejoinder in which it is averred that he has erroneously stated that he was unaware of the demise of the defendant no.2 till 30th July, 2008. He has also tendered unconditional apology. A further explanation is given that he had no recollection of the above facts and the statement be deleted. 5. Mr. Kamdin, learned counsel appearing for the plaintiffs submitted that the plaintiff no.1 is at present 90 years old and at the time of demise of the defendant no.2 he was 83 years old. He further submitted that probably because of his advanced age, an incorrect statement was made in the affidavit-in-support of the chamber summons. He submitted that the delay is not deliberate inasmuch as the plaintiff cannot said to have been benefited by his inaction. He lastly submitted that the phrase “sufficient -: 3 :- cause” must receive liberal construction. He relied upon the three reported judgments, namely, (i) (2002) 3 SCC 195 in the matter of Ramnath Sao alias Ram Nath Sahu & ors vs Gobardhan Sao and ors, (ii) (1998) 7 SCC 123 in the matter of N. Balkrishnan vs Krishnamurthy, and (iii) AIR-1987 SC 1353 in the matter of Collector Land Acquisition Anantnag & anr vs Mst.Katiji & ors. 6. Ms. Sidhwa, learned counsel appearing on behalf of the defendant no.2, per contra opposed the prayer made in the chamber summons. She submitted that the plaintiff no.1 is not an ordinary person, he is a director in 15 companies. She further submitted that defendant no.2 worked with the plaintiff for more than 30 years in defendant no.1 company. She further stated that the plaintiff was present in a meeting of the board of directors of the defendant no.1 in which note of the sad demise of the defendant no.2 was taken and two minutes’ silence was observed to pay respects to the departed soul. Inspite of the above position, incorrect statement was made in the affidavit-in-support of the chamber summons and consequently a lame excuse is tried to be given. She also relied upon three reported judgments, namely, (i) (2009) 2 SSC 689 in the matter of R.B.Ramlingam vs R.B.Bhaneshwari (ii) (2008) SCC 321 in the matter of Perumon Bhagwathy Devaswom Perinadu village vs Bhargavi Amma (dead) & ors by LRs and others and (iii) (2009) 7 SCC 460 in the matter of Sunkarlakshmi Narasamna and Anr. v/s. Sagisubbaraju & ors. -: 4 :- 7. Having considered the respective submissions of the learned counsel for the respective parties and having gone through the pleadings and the documents annexed thereto, I am of the opinion that the plaintiff miserably fails to show sufficient cause for condoning the delay occurred in filing the chamber summons for bringing legal heirs of the defendant no.2 on record. 8. It is true that the application for condonation of delay for bringing the legal heirs on record and application for condonation of delay in filing appeal are to treated differently. It is also by now settled law that the phrase “sufficient cause” must be construed liberally. However, whether the parties have made out sufficient cause or not depends upon the facts and circumstances of each individual case. In the present case, record discloses that the plaintiff and defendant no.2 were the directors in the defendant no.1 company and they worked together for more than 30 years. The note of the death of the defendant no.2 was also taken in a meeting which was attended by the plaintiff no.1. Minutes of the said meeting state that defendant no.2 tendered yeomen services to the defendant no.1 - company. Thus, the plaintiffs had knowledge about the death of the defendant no.2 and inspite of this position the present chamber summons is filed by the plaintiff after a period of more than 7 years. The most disturbing fact is that the plaintiff no.1 made a statement in his affidavit- in-support of the present Chamber Summons that he was not aware of the -: 5 :- death of the defendant no.2. The statement to the knowledge of the plaintiff no.1 was incorrect. Probably, this statement was made to get the delay occurred in filing the chamber summons condoned. The falsity of the statement was brought on record by the defendant by filing affidavit- in-reply. The plaintiff thereafter filed a rejoinder and tendered an unconditional apology. An explanation was also sought to be given that this has probably happened because of the old age of the plaintiff no.1. In my opinion, the explanation is clearly after thought. It is not the case of the plaintiff no.1 that he was not aware about the procedure for bringing the legal heirs of the deceased defendant no.2 on record. The plaintiff no. 1 is a well educated person and is occupying position of director in 15 companies. Under these facts and circumstances, I am of the opinion that the plaintiff has not established sufficient cause to condone the delay. 9. So far as the judgments relied upon by Mr. Kamdin, learned counsel appearing on behalf of the plaintiffs are concerned, there is no dispute about the propositions laid down in these judgments. The Apex Court in all these cases held that the phrase “sufficient cause” must receive liberal construction. However, in the present case since I have come to a conclusion that the plaintiff has not given sufficient cause, the delay cannot be condoned. 10. This takes me to consider the judgments relied upon by Ms. Sidhwa, learned counsel appearing on behalf of the defendant no.1. So far as the -: 6 :- judgment of the Supreme Court in the matter of R. B. Ramlingam v/s. R. B. Bhvaneshwari reported in (2009) SCC 689 is concerned, the Apex Court has held that the test of “sufficient cause” is purely an individualistic test and it is not an objective test and therefore no two cases can be treated alike. The Apex Court in Perumon Bhagvathy Devaswom (supra) re- iterated the view taken by the Apex Court in another case reported in (2002) 3 SCC 195 (in the matter of Ram Nath Sao v/s. Gobardhan Sao), in which it was emphasised that the Court should not loose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. 11. So far as the reliance placed by Ms. Sidhwa on the 2005(1) Mh.L.J. 257 in the matter of Kapol Co-operative Bank Ltd., Mumbai v/s. State of Maharashtra and Others is concerned, this case deals with the effect of false affidavit sworn and copies served upon the parties. So far as this aspect is concerned, the plaintiff has tendered unconditional apology and therefore the said judgment is not applicable to the facts of the present case. 12. Taking overall view of the matter, I am of the opinion that the plaintiff has not made out any case for condonation of delay. Chamber summons is, therefore, dismissed. (R. V. MORE, J.) -: 7 :-