Allowed

Crystal Sofware Solutions Ltd. v. Mirc Electronics Ltd.

Bombay HC5 Jan 2012NMS/130/2010

Case brief

AI extract

What is this about?

Defendant applied to condone delay in filing a written statement in suit no.1864 of 2003 and set aside an order transferring the suit to the list of undefended suits. The court allowed the motion, taking the statement on record due to lack of prejudice to the plaintiff. Hearing expedited.

What did the court decide?

Notice of Motion allowed; written statement dated 23rd December 2009 taken on record; order setting aside transfer to list of undefended suits followed.

Crystal Sofware Solutions Ltd. Vs Mirc… — Civil Procedure and Limitation | Bombay HC (2012)

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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. 130 OF 2010

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SUIT NO. 1864 OF 2003.

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Crystal Software Solutions Limited. ..Plaintiffs. vs. Mirc Electronics Limited. ..Defendants.

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Ms. Pooja Ksirsagal, a/w. Mr. Yogesh N. Adhia, for Plaintiffs. Ms. Kavita A.Shah, for Defendants.

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.... CORAM : S.J. KATHAWALLA, J. DATE : 5TH JANUARY 2012.

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P.C. :

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By this Notice of Motion, the Defendants have prayed that the order dated 30^th October 2007 passed by the Learned Commissioner for Taking Accounts transferring the Suit to the list of undefended Suits be set aside, that the delay in filing the written statement of the Defendants be condoned, and the written statement of the Defendants dated 23^rd December 2009, be taken on record.

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In the Affidavit in support of the Notice of Motion, the Defendants have contended that the Plaintiffs have annexed typed copies of the documents by way of Exhibits to the Plaint and it was necessary and inevitable for the Defendants to take inspection of the original documents and thereafter file their written statement. It is submitted by the Defendants that despite letters dated 20^th January 2006 and 8^th February 2006 addressed to the Advocates for the Plaintiffs seeking inspection of documents referred to and relied

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upon in the Plaint, the Plaintiffs and or their Advocate have failed to give inspection of the original documents and/or to respond to the said letters (Exhibit -1 and 1A to the Affidavit in support of the Notice of Motion). According to the Defendants, ultimately the Chamber Summons No. 599 of 2008 was taken out on their behalf seeking inspection of the documents to which there was no reply filed by the Plaintiffs. In fact, at the time of hearing of the Chamber Summons, the Advocate appearing for the Plaintiffs made a statement that the Plaintiffs shall grant inspection to the Defendants within a period of four weeks. In view of the said statement, the Defendants did not press the Chamber Summons, which was disposed of by an order dated 2^nd March 2009. The Defendants thereafter took inspection of the documents from the Advocate for the Plaintiffs, who according to the Defendants have till date not furnished copy of the ledger account as agreed in their letter dated 1^st April 2009.

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According to the Defendants, when the present Advocates filed their Vakalatnama on behalf of the Defendants i.e. in October 2009, they took search of the papers and proceedings of this Court by filing a search praecipe. At that time, the Advocate for the Defendants came across an order dated 30^th October 2007 passed by the Learned Commissioner for Taking Accounts thereby transferring the Suit against the Defendants to the list of undefended Suits as none had appeared for the Defendants. The present Advocate for the Defendants thereupon immediately drafted the written statement and after the same was declared on 23^rd December 2009, a true copy of the same was forwarded to the Plaintiffs’ Advocate who were also requested to give consent for filing the written statement of the Defendants. Since there was no response from the Plaintiffs and/or

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their Advocates, the Defendants took out the present Notice of Motion. It is therefore submitted on behalf of the Defendants that the reliefs sought in the Notice of Motion be granted.

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The Learned Advocate appearing for the Plaintiffs has submitted that the Defendants ought to have filed their written statement on time and they cannot delay the filing of the written statement on the ground that the inspection of the documents was not offered by the Plaintiffs and/or their Advocates. It was further submitted that the first letter seeking inspection was written only on 20^th January 2006 i.e. much after the time for filing written statement had elapsed.

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I have considered the submissions advanced by the Learned Advocates appearing for the Defendants as well as the Plaintiffs. It is true that the Plaintiffs have not annexed to the Plaint the originals and/or the photostat copies of the documents i.e. Exhibits A-1, A-2, B-1, B-2, B-3, C-1, C-2, G to I. It appears that the earlier Advocate of the Defendants had not filed the written statement in the matter on time and that from 2006 onwards, he sought inspection of documents from the Advocates for the Plaintiffs. In the meantime, on 4^th September 2007, the matter appeared for directions when the Plaintiffs, the Defendants and their respective Advocates remained absent and the matter was adjourned for eight weeks. Thereafter, the matter was called out for directions on 30^th October 2007 when once again the Plaintiffs, the Defendants and their respective Advocates remained absent. On that day, the Suit against the Defendants was transferred to the List of Undefended Suits. The Chamber Summons was taken out on behalf of the Defendants seeking inspection of documents only in the year 2009. The

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Plaintiffs did not object to the prayers sought by the Defendants by the said Chamber Summons on the ground that the Suit was already transferred to the List of Undefended Suits. The Plaintiffs did not even file a reply to the Chamber Summons but instead informed the Court that they would be giving inspection of documents to the Advocate for the Defendants within a period of four weeks from 2^nd March 2009 and in fact, gave inspection of the documents to the Advocate for the Defendants in March/April 2009. It shows that not only the Defendants as contended, were not aware of the Order transferring the Suit to the List of Undefended Suits on 30^th October 2007, but the Advocate for the Plaintiffs were also not aware of the said fact even 2 years after the said Order dated 30^th October 2007 was passed. The Defendants have already kept their written statement ready since 23^rd December 2009. However they could not file the same since the Plaintiffs refused to give their consent and therefore, they were required to take out the present Notice of Motion.

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In view thereof, though there is a delay on the part of the Defendants in filing the written statement, which it appears is due to some misunderstanding on the part of their earlier Advocates, no prejudice is caused to the Plaintiffs who it appears were themselves not aware of the Order dated 30^th October 2007, atleast upto April 2009, and who have not moved the Court with any application for taking up the Suit for ex-parte hearing, despite their being an Order directing that the said Suit should be placed on Board after four weeks from 30^th October 2007.

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In view of the above circumstances, and keeping in mind the fact that no prejudice has been caused to the Plaintiffs but grave and

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irreparable harm, damage, injury and prejudice will be caused to the Defendants if its written statement is not taken on record, the Notice of Motion is allowed in terms of prayer clauses (a), (b) and (c). The written statement dated 23^rd December 2009 of the Defendants is taken on record and the copy of the same is also handed over to the Advocate for the Plaintiffs. The Notice of Motion is accordingly disposed of. The hearing of the Suit is expedited.

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Place the Suit for framing of issues on 11^th January 2012 high on board.

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[ S.J. KATHAWALLA, J. ]

Crystal Sofware Solutions Ltd. v. Mirc Electronics Ltd.

Case brief

What is this about?

What did the court decide?

Crystal Sofware Solutions Ltd. v. Mirc Electronics Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Coram

Case details

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