Disposed

M/S. Al-Can Exports Pvt. Ltd. v. Prestige H.M. Polycontainers Limited and 7 Ors.

Bombay HC23 Nov 2011NMW/129/2011

Case brief

AI extract

What is this about?

The High Court disposed of a notice of motion filed by a respondent who claimed they were not heard in an earlier order. The court found the respondent's claim was based on false statements by their own advocate. Consequently, the High Court directed disciplinary proceedings against the advocate and expedited the original writ petition.

What did the court decide?

The notice of motion was disposed of. The Prothonotary and Senior Master were directed to send a copy of the order to the Secretary, Bar Council of Maharashtra for disciplinary action. The hearing of

M/S. Al-Can Exports Pvt. Ltd. Vs Prestige H.M… — Writ and Judicial Review | Bombay HC (2011)

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I N THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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jmi

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NOTICE OF MOTION NO. 129 OF 2011

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WRIT PETITION NO. 415 OF 2011.

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M/s. Al-Can Exports Private Limited. ..Petitioner.

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vs.

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Prestige H.M. Polycontainers Limited & Ors.

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..Respondents.

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Mr. M.M. Vashi, i/b. M.P. Vashi & Asso., for Petitioner.

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Mr. Satelkar, for Respondent No. 1- Official Liquidator.

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Mr. R.R. Bhosale, AGP, for Respondent Nos. 2 to 4 & 8.

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Mr. S.Y. Chaurasia, a/w. Ms. Krupa Mehta, i/b. M.K. Ambalal & Co., for Respondent No. 6.

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Mr. Kalpesh Parekh, i/b. Pragana Thakkar & Co., for Respondent No. 9.

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Dr. Anil G. Variath, i/b. Law Focus.

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CORAM : S.J. KATHAWALLA, J. DATE : 23RD NOVEMBER 2011.

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P.C. :

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By an order dated 7^th September 2010, the above Writ Petition was admitted and the impugned order was stayed. Admittedly, the Respondent No. 6 – Asset Reconstruction Company (India) Limited was not represented by any Advocate when the said order was passed.

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This Notice of Motion is taken out by the Respondent No. 6 on 4^th February 2011 (five months after the order dated 7^th September 2010 was passed) praying for setting aside of the said order dated 7^th September 2010 passed by this Court. In the Affidavit in support of the Notice of Motion, it is inter alia stated as follows :-

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“ 5. I say that the order dated 7^th September 2010 was

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passed without hearing the present Respondent No.6. I say that the matter was on board at Sr No 18 on 7^th September 2010. I further say that the matter was tracked till 4.50 p.m. when serial no. 15 was going on and there was only remote possibility of the matter being taken up the Lawyer on record who was supposed to appear in the matter left for some other prefixed engagement. I say that order was passed at the zero hour or immediately before the disbursal with the consent of the advocate for Respondent No.1. I further say that on earlier two occasions on 30^th August 2010 and 24^th August 2010 the matter was adjourned by consent of the Petitioner and Respondent No.1 in a collusive manner and at that time the Advocate present in the Court had brought it to the Notice of the High Court.”

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In response to the Affidavit in support filed by the Respondent No. 6, the Petitioner filed an Affidavit inter alia setting out that the matter was called out at 1.00 p.m. on 7^th September 2010 and that the contents of paragraph 5 are totally incorrect. Faced with this fact, Shri Risabh Shah, the Learned Counsel for the Respondent No. 6 appearing in support of the Notice of Motion informed the Court yesterday that the said Affidavit was prepared on the basis of the facts narrated to the Respondent No. 6 by his earlier Advocates M/s. Law Focus. In view thereof, the earlier Advocate of the Respondent was directed to remain present before this court today at 11.00 a.m.

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Today, Shri Anil Variath, the earlier Advocate for the Petitioner is present in Court. He has informed the Court that in the morning of 7^th September 2010 when he attended the Court, the matter had not reached. However when he came to the Court at 4.30 p.m., he realised that the matter had already reached and orders were passed. In view thereof, this Court asked the Deponent of the Affidavit as to why a false statement was made in his Affidavit that the matter had not reached upto 4.50 p.m. on 7^th September 2010. In response thereto, the Deponent of the Affidavit has produced a letter dated

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14^th September 2010 written by Advocate Anil Variath. The said letter reads as follows :-

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“ With reference to the above, we regret to inform you that the captioned Writ Petitions were on board before His Lordship Mr. Justice Kathawalla on 07.10.2010 at serial no. 18. The matter was assigned to Adv. Rishabh Shah, who was appointed as the Counsel in the case by you. According to our information, himself personally or his junior were present in the court throughout. Adv. Anil Variath & Adv. Shital Londhe were also tracking the case and either of them were present in the court from 11.30 to 4.50 p.m. At 4.50 p.m. serial no. 15 was going on in the court and seeing only a remote possibility of the matter being taken up, our lawyer has left for some other prefixed engagement. While leaving the court, the junior of Adv. Rishabh Shah was present in the court.

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The next morning we were informed by the counsel’s office that the matter was admitted and status quo was ordered. We do not understand when the matter was moved and our enquiries reveal that, it was moved either at the zero hour or immediately before the disbursal with the consent of the Advocate for Respondent No. 1. Earlier two occasions i.e. on 30.08.2010 & 24.08.2010, the matter was got adjourned by consent of the Petitioner and Respondent No.1 in a collusive manner and at that time our Advocate present in the court had brought it to the notice of the Hon’ble court.

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........................”

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The contents of the said letter shows that Advocate Anil Variath who claims to be the Partner of the Firm ‘Law Focus’ has written a letter to his clients setting out incorrect facts as to what transpired in the Court on that day. As informed by him to this Court today, though he was aware at 4.30 p.m. on 7^th September 2010 that the Writ Petitions were already called out and orders were passed, he has on 14^th September 2010 written to his client the Respondent No. 6 that the matter had not reached upto 4.50 p.m. on that day when the Advocate left the Court for a pre-fixed

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engagement. He has further incorrectly recorded in his order that he came to know that the matter was admitted and status-quo was ordered only on the next day and his inquiry revealed that “ the matter was moved either at the zero hour or immediately before the disbursal with the consent of the Advocate for Respondent No. 1”.

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This clearly shows that the Advocate to cover up his default has given information about the Court proceedings to his client which were false to his knowledge. When this Court inquired from Advocate Variath as to why he had recorded statements in his letter addressed to his client which were false and incorrect to his knowledge, he has no answer. He only offers to tender a written apology. In my view, such an apology is unacceptable. When such false statements are deliberately made by Advocates, it not only adversely affects the interest of their client but also tarnish the image of the profession to which they belong.

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I therefore direct the Prothonotary and Senior Master of this Court to send a copy of this order to the Secretary, Bar Council of Maharashtra with a direction to take appropriate disciplinary proceedings against Advocate Anil Gopal Variath. As far as the reliefs sought in the Notice of Motion are concerned, it is clear that the Notice of Motion is taken out on the basis of totally false and incorrect information provided to the Respondent No. 6 by his former Advocate. However since the Respondent No. 6 cannot be blamed for the conduct of his Advocates and though the Respondent No.6 has taken out the above Notice of Motion five months after the order dated 7^th September 2011 was passed and further since the order is not being modified, the hearing of the Writ Petition is expedited and is peremptorily fixed for hearing on 13^th February

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The Notice of Motion is accordingly disposed of.

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[ S.J. KATHAWALLA, J. ]

M/S. Al-Can Exports Pvt. Ltd. v. Prestige H.M. Polycontainers Limited and 7 Ors.

Case brief

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M/S. Al-Can Exports Pvt. Ltd. v. Prestige H.M. Polycontainers Limited and 7 Ors.

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