Allowed

Rang Sharda Hotels Pvt. Ltd. v. Lloyds Aregister Industries Services (India) Ltd.

Bombay HC26 Aug 2013NMS/951/2013

Case brief

AI extract

What is this about?

In a notice of motion, the High Court of Bombay at Bombay allowed the applicant/defendant to condone a 1849-day delay in filing a notice of motion and recalled the order transferring the suit to 'Undefended Suits', permitting the filing of a written statement upon payment of costs.

What did the court decide?

Notice of motion allowed subject to payment of costs of Rs. 25,000; Written statement to be filed within four weeks.

Rang Sharda Hotels Pvt. Ltd. Vs Lloyds… — Civil Procedure and Limitation | Bombay HC (2013)

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nms-951.13.doc

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ppn 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.951 OF 2013 IN SUIT NO.2023 OF 2003

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Lloyds Register Industrial Services (India) Limited .. Applicant

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(Orig. Defendant)

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In the matter of

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Rang Sharda Hotels Private Limited .. Plaintiff Vs.

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Lloyds Register Industrial Services (India) Limited .. Defendant

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Ms. Alpana Ghone i/by M/s. Kanga & Co. for the plaintiff. Mr. N.D. Jaywant i/by P.J. Ranga for the defendant.

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CORAM : N.M. JAMDAR, J. DATE : 26 AUGUST 2013

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P.C. :

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. By this notice of motion, the applicant/defendant prays that the delay of 1849 days in filing of notice of motion be condoned and the order passed by the Prothonotary and Senior Master transferring the suit to the list of the 'Undefended Suits' be recalled.

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The suit has been filed by the plaintiff seeking declaration that the rescission/termination of the agreement dated 16 March 1988 is valid and for possession of the premises from the applicant/defendant. It is the case of the plaintiff that there was an agreement for sale executed between the plaintiff and the applicant/defendant on 16 March 1988 upon certain terms and conditions. The applicant/defendant deposited an amount of Rs.61 lacs towards consideration. According to the plaintiff, since there were two breaches committed by the applicant/defendant. The

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ppn 2 nms-951.13.doc

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applicant/defendant terminated the agreement. Two breaches were; firstly non-payment of out going and other charges and secondly certain unauthorised structural alterations.

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A notice of motion bearing No.702 of 2004 was taken out by the plaintiff for certain interim reliefs. The applicant/defendant was represented through an advocate. The Court by order dated 25 November 2005 directed the defendant to continue to pay out goings and the property taxes etc. Thereafter, since the written statement was not filed in time, the Prothonotary & Senior Master transferred the suit to the list of 'Undefended Suits.' Thereafter, the present notice of motion was taken out on 22 February 2013. In the notice of motion, it is stated that the applicant/defendant was engaged in settlement talks with the plaintiff and they were expecting that the matter would be settled and, therefore, its written statement could not be filed in time. After filing of this notice of motion, there has been change of advocate on behalf of the defendant and additional affidavit has been filed on 19 August 2013. It is stated in the additional affidavit that initially the defendant has engaged the services of the advocate as well as the firm who had directed that appearance was filed for the advocate who represented the defendant earlier . It is stated that the defendant was not aware of the order of 22 October 2007 when the suit was transferred to the list of 'Undefended Suits.' It is stated that due to error on the part of the earlier advocate for the defendant, the written statement remained to be filed.

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Reply has been filed by the plaintiff to the notice of motion as well as additional affidavit. It is stated in the reply that initially there

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ppn 3

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nms-951.13.doc

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were some settlement talks, however, those settlement talks were concluded in the year 2004 itself. It is stated that the defendant has vacated the premises on 9 April 2011 and the suit premises are now vacant. It is stated that there was negligence on the part of the defendant and the notice of motion be rejected.

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The learned counsel for the applicant submitted that the applicant/defendant has not vacated the premises but due to some administrative reason, the office activities are suspended at present. The learned counsel submitted that under the agreement, the amount of Rs.61 lacs towards total consideration has already been paid. The learned counsel submitted that the reason for not filing written statement on time being negotiation and the lack of communication of advocate is placed on record.

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It appears that the defendant has paid consideration for the premises in question. As far as non-payment of compensation and other charges are concerned, by order dated 15 July 2013, the defendant was directed to abide by the order dated 25 November 2005. It is informed that the applicant/defendant has now cleared the compensation till date. As far as ground for delay is concerned, it is placed on record that there were certain negotiations. The fact of change of advocate is also placed on record. It appears that there were lack of communication between the defendant and its advocates. For the mistake on the part of the advocate, the litigants should not suffer. In the facts and circumstances of the case and considering the equities of the matter, I am of the opinion that the applicant/defendant is required to be given an opportunity to file a written

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ppn 4 nms-951.13.doc

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statement and the inconvenience caused to the plaintiff can be off set by imposing costs.

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In view thereof, the notice of motion is allowed in terms of prayer clauses (a) and (b) subject to the applicant/defendant paying costs of Rs.25,000/- to the plaintiff within a period of three weeks from today. The written statement to be filed within a period of four weeks from today. The written statement will be accepted only upon the payment of costs. Upon filing of the written statement the office will take appropriate steps to transfer the suit to the appropriate category. The learned counsel for the applicant/defendant states that amount of compensation/out goings which have been directed to be paid by the order dated 25 November 2005 will be continued to be paid every month upon bill so raised to the plaintiff. This undertaking is accepted.

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It is clarified that observations made in this order are only for the purpose of considering equities as to whether the defendant is permitted to file written statement at this stage, and not on merits of the rival claims

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It will be open to the plaintiff to file additional affidavit after filing of the written statement, in case it is so necessary.

Rang Sharda Hotels Pvt. Ltd. v. Lloyds Aregister Industries Services (India) Ltd.

Case brief

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Rang Sharda Hotels Pvt. Ltd. v. Lloyds Aregister Industries Services (India) Ltd.

Case brief

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