Allowed

Icici Bank Limited v. Fresh Coconut Products Ltd. and 4 Ors.

Bombay HC18 Jul 2014APP/430/2014

Case brief

AI extract

What is this about?

The Bombay High Court allowed an appeal against the dismissal of a suit for want of prosecution after observing that the plaintiff bank had made bona fide service attempts up to 2009, service had been thwarted by defendants, and subsequent transfer of bank officers caused service lapses. The order set aside the dismissal and directed re-service.

What did the court decide?

Impugned order dismissing the suit for want of prosecution was set aside and the appellant-plaintiff was directed to take steps to serve the writ of summons.

Icici Bank Limited Vs Fresh Coconut Products… — Civil Procedure and Limitation | Bombay HC (2014)

dssherla

903-appl-402-14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶5

ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.402 OF 2014 IN

¶6

SUIT NO.109 OF 2005

ICICI Bank Limited

.. Appellant

vs.

Fresh Coconut Products Ltd. & ors.

¶11

.. Respondents.

¶12

WITH

¶13

NOTICE OF MOTION (L) NO.1526 OF 2014 IN APPEAL (L) NO.402 OF 2014 IN SUIT NO.109 OF 2005

¶14

ICICI Bank Limited .. Applicant In the matter between ICICI Bank Limited .. Appellant vs.

¶15

Fresh Coconut Products Ltd. & ors. .. Respondents.

¶16

Mr. Chetan Kapadia a/w. Vijayendra Purohit i/b M/s. Manilal Kher Ambalal & Co. for Appellant.

¶17

CORAM: MOHIT S. SHAH, C.J. & M.S.SONAK, J. DATE : 18 July 2014.

¶18

P.C.:

¶19

This appeal is directed against the order dated 17 June 2014 of the learned Trial Judge. Suit No.109 of 2005 against Defendant Nos.1 and 4 is dismissed for want of prosecution.

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2] The learned Trial Judge has passed the above order on the ground that the Suit was lodged as far as back in November 2004, the appellants-plaintiffs did not take steps for almost 9 and ½ years to effect service upon defendant Nos.1 and 4, even after the writ of summons and the copy of plaint was returned back with endorsement “left”.

¶25

3] At the last hearing of appeal, learned counsel for the appellants/plaintiffs had invited our attention to the various attempts which were made by the plaintiffs for service of summons on defendant Nos.1 and 4 and today, an Officer of the plaintiffs bank has filed affidavit dated 17 July 2014 setting out all the relevant dates and events indicating that the plaintiffs had taken steps for service of summons on defendant Nos.1 and 4, but defendant Nos.1 and 4 seems to have thwarted those attempts. Our attention is also invited to the letter dated 19 November 2008 from defendant No.1 stating that they were in process of considering the repayment of suit amount to be paid to the plaintiffs and requesting for further extension of time for making payment. However, defendant no.1 not only did not make any payment as per the above assurances, but avoided service at the address indicated in the said letter dated 19 November 2008.

¶26

4] Learned counsel further invites our attention to the fact that the plaintiffs-appellants again sent a letter dated 12 July 2014 to defendant Nos.1 and 4 in this appeal, but even the said letter returned with a remark ' out of delivery ' and ' delivery on

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next business day ' in respect of respondent Nos.1 and 4 (defendant Nos.1and 4), and so, even the said attempts failed.

¶32

5] Having heard learned counsel for the appellants and having gone through the aforesaid affidavit dated 17 July 2014, it does appear that the appellants-plaintiffs had made several bonafide attempts to serve the writ of summons on defendant Nos.1 and 4 till 2009. Thereafter three officers of the plaintiffs bank were transferred and that is how the instructions to proceed with publication of the writ of summons were not given to the advocates.

¶33

6] In the facts and circumstances of this case, we are of the view that the plaintiffs bank deserves to be granted further opportunity to effect service of writ of summons on defendant Nos.1 and 4, if necessary by substituted service.

¶34

7] In the result, the appeal is allowed. The impugned order dated 17 June 2014 dismissing the suit against defendant Nos.1 and 4 is hereby set aside and the appellants-plaintiffs shall take necessary steps for service of writ of summon on defendant Nos.1 and 4 as indicated above.

¶35

8] The appeal stands disposed of.

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9] In view of disposal of appeal, Notice of Motion (L) No.1526 of 2014 does not survive and is disposed of as infructuous.

¶41

CHIEF JUSTICE

¶42

(M.S.SONAK, J.)

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Icici Bank Limited v. Fresh Coconut Products Ltd. and 4 Ors.

Case brief

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What did the court decide?

Icici Bank Limited v. Fresh Coconut Products Ltd. and 4 Ors.

Case brief

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What did the court decide?

What the court decided

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