The Court restored a suit dismissed for want of prosecution, subject to the deposit of Rs. 10,00,000 as costs and the filing of an affidavit of documents and evidence by June 25, 2014.
Suit restored to file conditional upon payment of Rs. 10,00,000 as costs and filing of affidavit of evidence and compilation by June 25, 2014.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
212-NMS1364-13.DOC
agk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1364 OF 2013
IN
SUIT NO. 2578 OF 2002
The Boots Company PLC & Others…Plaintiffs
Versus
Ind Swift Limited and Another…Defendants
Mr. Rashmin Khandekar , i/b M/s. Gajharia & Co., for the Plaintiffs.Mr. Darius Dalal, i/b M/s. Jehangir Gulabbhai & Bilimoria &
Daruwalla, for the Defendants.
CORAM: G.S. PATEL, J DATED: June 12, 2014
PC:-
1.The suit was dismissed on 29th January 2013 by S.J.
Kathawala, J. That order documents in minute detail how, despite
specific directions issued on 1st December 2010 to the plaintiffs to
file their affidavit of documents and compilation and to complete
discovery and inspection, the plaintiffs failed to do anything at all.
The order notes that the matter came up several times, only to be
repeatedly adjourned, often at the instance of the plaintiffs. Finally,
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212-NMS1364-13.DOC
when it was taken up again on 29th January 2013 rather than
demonstrating compliance, the plaintiffs’ advocate yet again sought
an adjournment saying that the plaintiffs are in UK. This could
hardly have come as news to the plaintiffs’ advocates. Kathawala, J.
noted that even after two years, the plaintiffs showed a remarkable
lack of enthusiasm in prosecuting their own cause. The suit was
dismissed on that count for want of prosecution.
2.The plaintiffs then filed Notice of Motion No. 1364 of 2014
seeking inter alia that this order of 29th January 2013 be recalled
and that the suit be restored. I note, though only in passing, that
there is delay in the filing of this notice of motion too. That delay,
being a trivial seven days, is condoned.
3.The reason given in paragraph 3 of the affidavit in support of
the notice of motion for non-compliance with this Court’s order
does the plaintiffs no credit at all. It reads thus:
“3.I say that the draft of the affidavit of evidence and
was ready and was in the process of being approved by
the plaintiffs. The said affidavit of evidence and list of
documents was prepared by the plaintiffs’ advocates on
record, who sent the same to the plaintiffs’ Trade Mark
Attorneys who after checking the same sent it to the
plaintiffs’ for approval. The plaintiffs who are based in
United Kingdom have several meetings firstly with their
in house Counsel and then with their Attorneys to finalise
the same. Further it took a long time to locate the
documents required for the same as the documents
required are quite old. I say that the affidavit and the
compilation of documents are now ready and executed.”
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4.Far from advancing the plaintiffs cause, to my mind, this only
damages it further. I am unable to understand on what basis the
plaintiffs can claim any sort of right to the restoration of the suit, if
this be their conduct. It seems to me unlikely that in their own
jurisdiction in England the plaintiffs or, for that matter, any other
litigant would have been shown the kind of indulgence that the
plaintiffs seek of me, except perhaps on the stringent terms. Again
and again we hear others, including foreign courts, say that our
courts delay disposals and, too, that cases do not reach trial for ten
to 15 years. And yet, here is a party from precisely such a foreign
jurisdiction, which, when the court specifies a time schedule and
proposes to take up its matter, chooses instead to only drag its feet
and repeatedly seek adjournments. I see no reason why a standard
as stringent as might have been applied in the local courts of the
plaintiffs’ domestic jurisdiction should not be applied by our
Courts. In those courts, costs, including actual legal expenses, are
the norm not the exception. This is most especially true of reputed
multinational companies that, evidently, as the quoted paragraph
shows, are not wanting for competent legal advice and assistance.
5.I am only inclined to make a conditional order. I do so only
because there is now a confirmation in the affidavit in support of
this notice of motion that the affidavit of evidence and compilation
required to be prepared by the plaintiffs is now ready.
6.Therefore: upon the plaintiffs’ paying to the defendants’
advocate a sum of Rs. 10,00,000/- (Rs. Ten Lakhs; by my
reckoning, just under GBP 10,000, a trivial amount) as costs as a
condition precedent within a period of ten days from today, i.e., on
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or before 23rd June 2014, and further conditional upon the
plaintiffs’ filing in the registry of this Court, on or before 25th June
2014, their affidavit of evidence and compilation of documents, the
suit shall stand restored to file.
7.The registry is not to accept either the affidavit of evidence
or compilation of documents without proof of payment of costs. If
the costs are paid, copies of the affidavit of evidence and
compilation of documents shall be served on the advocate for the
defendants on or before 25th June 2014. It is made clear that
without payment of costs, the advocates for the defendants are
under no obligation to accept service of the affidavit of evidence
and compilation of documents.
8.If the costs are not paid as directed, or, even if paid, if the
affidavit of evidence and compilation of documents are not filed by
the stipulated date, the suit shall not be restored to file. It is only on
compliance of both conditions that the suit shall stand restored. If it
is restored, it shall be listed on 26th June 2014 on the
supplementary board for marking the plaintiffs’ documents. The
plaintiffs will not be granted any further time on any account.
9. The notice of motion of disposed of in these terms.
(G. S. PATEL, J.)
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1 issue framed by the court
Whether the High Court can restore a suit dismissed for want of prosecution when the plaintiff is a foreign entity that failed to comply with discovery directions for over two years.
The Boots Company PLC & Others
Ind Swift Limited and Another
G. S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court