Allowed

Venkatesh Constructions and Earth Movers Co. v. Mrs. Prabha Shenai

Bombay HC18 Mar 2013WP/2450/2013

Case brief

AI extract

What is this about?

In a writ petition by an original defendant seeking to cross-examine the plaintiff, the High Court of Bombay quashed the impugned order rejecting the Notice of Motion. The Court granted an opportunity for cross-examination despite procedural delays, imposing costs on the petitioner to compensate the respondent for the time lapsed.

What did the court decide?

Impugned order dated 9.01.2013 is quashed and set aside. Notice of Motion No.293/2012 is allowed. Petitioner entitled to cross-examine Plaintiff.

Venkatesh Constructions and Earth Movers Co. Vs Mrs… — Execution and Attachment | Bombay HC (2013)

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30.wp.2450.2013.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2450 OF 2013

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Venkatesh Constructions & Earth Movers Compnay, Office at Nawada Phata Opp. P.J.Mhatre Vidyalay, Nawada, Tal. Panvel, Dist. Raigad. ..Petitioner

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(Ori. Defendant)

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-Versus-

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Mrs.Prabha Shenai Mumbai, Adult, Indian Inhabitant, carrying business in the name and style of M/s. Sterling Engineers Co. As a sole Propritor and R/a 401.A, Pushkar Accord, Lokhandwala Township, Akurli, Kandivali (E), Mumbai 400 101 ..Respondent (Ori. Plaintiff)

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Mr.Sachindra B. Shetye with Ms.Pratibha Borade, Advocate for the Petitioner.

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Mr.Prakash R. Shenai Power of Attorney holder of the Respondent present in-person.

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CORAM : R.M. SAVANT, J. DATE : 18^TH MARCH 2013

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ORAL JUDGMENT :

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1 Rule, with the consent of the learned counsel for the Petitioner and

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the Power of Attorney of the Respondent, made returnable forthwith and heard.

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2 The writ jurisdiction of this Court is invoked against the order dated

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S.K.Talekar

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9.01.2013 passed by the learned Judge of the City Civil Court, Greater Bombay by which order Notice of Motion No.293/2012 filed by the Petitioner for being permitted to cross-examine the Plaintiff came to be rejected.

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3 The suit in question which is a Summary Suit has been filed by the Respondent herein seeking to recover an amount of Rs.16,67,638.79 Paise as per the Particulars of Claim being Exhibit ‘E’ with interest on the said sum of Rs.9,16,455.50 Paise at the rate of 30% per annum from the date of the filing of the suit till decree. The said suit was earlier before this Court. However, on the increase of the pecuniary jurisdiction of the City Civil Court, the said suit stood transferred to the City Civil Court. In the said suit, the Plaintiff has filed her affidavit of Examination-in-Chief which is dated 18.04.2009. Thereafter it seems the matter was kept for the cross-examination of the Plaintiff by the Respondent on three dates. However, the Defendant did not conduct the cross-examination. Ultimately, an order came to be passed by a learned Single Judge of this Court on 15.04.2011 directing the Defendant to file affidavit of evidence and the list of documents within six weeks from the said date. Thereafter, the matter again came before a learned Single Judge of this Court on 30.11.2011 on which day it was pointed out to the learned Single Judge that the Defendant has not cross-examined the Plaintiff and therefore

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there is no question of the Defendant filing the affidavit of evidence. It was further stated on behalf of the Defendant that it desired to move the Court for recall of the order dated 15.04.2011 because it was passed without noticing that the Plaintiff's cross-examination is not yet over. Thereafter again on 11.01.2012, the Defendant prayed for time which was granted to it subject to payment of costs of Rs.1,000/-. It seems that the suit again appeared before a learned Single Judge of this Court in February 2012 when the learned Single Judge directed the Defendant to file affidavit of evidence and the affidavit of documents on or before

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30.03.2012. However, the Defendant had already filed Notice of Motion No.293/2012 for recall of the order dated 15.04.2011 passed by the learned Single Judge of this Court. In the Affidavit-in-Support of the Notice of Motion, the fact that the Plaintiff has not been cross-examined has been stated as also the fact that by order of 30.11.2011, this Court had adjourned the matter to enable the Defendant to move the Court for recalling the order dated 15.04.2011. By moving the said Notice of Motion the Defendant was seeking the recall of the order dated 15.04.2011, so that the Plaintiff could be cross-examined by it. In so far as the said Notice of Motion No.293/2012 is concerned, no affidavit-inreply has been filed to the same. The said Motion was heard by the learned Judge of the City Civil Court who by the impugned order dated 9.11.2013 has rejected the same. Before the Trial Court it was

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S.K.Talekar

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contended on behalf of the Defendant that the Advocate who was appearing in the Suit Mr.S.B.Kumthekar had died in December 2010 and therefore the Advocate who had come on record for the Defendant had no instructions to proceed with the matter and it is in view thereof that the cross-examination of the Plaintiff could not be conducted. The said reason was not found acceptable by the learned Judge of the City Civil Court as according to him though Mr.Kumthekar had died in December 2010, various orders have been passed in the suit thereafter in the year 2011-2012. The learned Judge also observed that though in February 2012, it was observed that no further time would be granted to the Defendant, the Defendant had failed to move the instant Notice of Motion No.293/2012 for reliefs.

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4 As indicated above, it is the said order dated 9.01.2013 passed by the learned Judge of the City Civil Court, Greater Bombay which is taken exception to by way of the above Writ Petition. The learned counsel appearing or the Petitioner i.e. the Original Defendant would reiterate the case of the Petitioner before the Trial Court namely that it is on account of the death of Mr.Kumthekar in December 2010 that the matter could not be proceeded with by the present Advocate on record as she was handicapped as at the relevant time, Mr.Kumthekar was on record. The learned counsel would contend that though there is a time lag between

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the Affidavit of Examination-in-Chief filed by the Plaintiff and the application filed by the Defendant i.e. the present Notice of Motion No.293/2012, the learned counsel would contend as an by way of last opportunity, time may be granted to the Defendant so that they could cross-examine the Plaintiff.

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5 Per contra, Mr.Shenai, the Power of Attorney for the Original Plaintiff opposes the application and contends that there is no explanation for the delay from February 2012 for not moving the Notice of Motion and seeking the relief sought. Mr.Shenai would contend that since the delay has not been properly explained, the Defendant i.e. the Petitioner herein is not entitled to the relief sought.

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6 Having heard, the learned counsel for the Petitioner and the power of attorney holder of the Respondent, in my view, as and by way of final indulgence an opportunity is required to be granted do the Petitioner so that the cross-examination of the Plaintiff can be conducted. It is required to be noted that the affidavit of Examination-in-Chief has been filed in July 2009 and it is thereafter that Mr.Kumthekar has died in December 2010. The reason given by the Petitioner for not cross-examining the Plaintiff during the said period can be a plausible reason for the same. It is required to be noted that it is on 30.11.2011 that a learned Single

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S.K.Talekar

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Judge of this Court was informed that the Petitioner is desirous of moving an application for setting aside the said order dated 15.04.2011. The instant Notice of Motion has thereafter being filed in January 2012. The Petitioner, therefore, can be said to have taken steps for seeking the relief of recall of the order dated 15.04.2011. The delay in moving the Notice of Motion and getting the Notice of Motion adjudicated, in my view, cannot come in the way of the Petitioner so as to deprive it of the right to cross-examine the Plaintiff. It is always desirable that a party is given the opportunity to contest the matter on merits rather than being thrown out on technicalities. No doubt, there is some delay on the part the Petitioner after the affidavit of Examination-in-Chief is filed by the Plaintiff in July 2009. However, for the said delay, the Plaintiff can be compensated by way of costs. Hence, the impugned order dated 9.01.2013 is quashed and set aside, resultantly, Notice of Motion No.293/2012 is allowed. The Petitioner-Defendant would be entitled to cross examine the Plaintiff. The said cross-examination would have to be completed expeditiously as the affidavit in Examination-in-Chief has already been filed in July 2009. The said cross-examination would be completed as per the schedule that would be fixed by the Trial Court. The learned counsel for the Petitioner assures the Court that no adjournment would be sought for the same.

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7 In the facts and circumstances of the case, it would be just and

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30.wp.2450.2013.doc

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proper to impose costs of Rs.10,000/- on the Petitioner to be paid to the Original Plaintiff within a period of two weeks from date and evidence of the same to be produced before the Trial Court.

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Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs.

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(R.M. SAVANT, J.)

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S.K.Talekar

Venkatesh Constructions and Earth Movers Co. v. Mrs. Prabha Shenai

Case brief

What is this about?

What did the court decide?

Venkatesh Constructions and Earth Movers Co. v. Mrs. Prabha Shenai

Case brief

What is this about?

What did the court decide?

What the court decided

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