Partly allowed

Universal Music India Pvt. Ltd. v. Super Cassettes Industries Pvt.Ltd. and 3 Ors.

Bombay HC13 Jun 2014NMS/602/2014

Case brief

AI extract

What is this about?

Respondent sought to recall orders closing its case due to long delay and absence. Court refused unconditional recall, imposed Rs. 1 Lakh costs as condition precedent, and set strict fixed schedule for future proceedings.

What did the court decide?

Orders of 18 Jan 2013 and 18 Feb 2013 recalled on payment of Rs. 1 Lakh costs; orders of 2007 and 2007 upheld; case listed for 17 June 2014.

1.This is the 1st defendant’s notice of motion. The 1st defendant seeks the setting aside or recall of four orders dated 30th August 2007, 29th October 2007, 18th January 2013 and 18th February 2013.

2.By the order dated 30th August 2007 the plaintiffs’ documents were marked as exhibits in evidence. Mr. Singh, learned advocate for the 1st defendant, contends that he must be allowed to contest the marking of these documents.

3.I will consider subsequently Mr. Singh’s submission that there is a tenable explanation for the delay evident not only in filing of this application but also in complying with the orders of the Court. However for the purposes of prayer (a), that argument or submission is entirely immaterial. The 1st defendant’s consent was not necessary for the marking of the plaintiff’s documents. The order dated 30th August 2007 shows that the Court considered whether the plaintiff’s witness had, in his evidence affidavit, sufficiently proved the documents and also whether the provisions of Order 12 Rule 2-A could be applied to one or more of the plaintiff’s documents. Whatever the 1st defendant’s reason for remaining absent on that date, there is no reason for setting aside or recalling that order. It is sufficient to clarify that the order of 30th August 2007 will not and does not prevent the 1st defendant from cross-examining the plaintiff’s witness (assuming such latitude is granted after considering the remaining prayers in this notice of motion); nor does it mean that the 1st defendant will be deemed to have accepted the correctness of the contents of those documents merely on account of the 1st defendant’s absence on that date.

4.Prayers (b) and (c) raise a more serious problem. For, here the 1st defendant contends that although it has diligently defended the suit for nearly 21 years, in 2007 a series of miscommunication between 1st defendant’s then advocates and 1st defendant’s head

office in Delhi, combined with the passing away of the 1st defendant’s representative who was till then attending to this litigation, resulted in wholly unforeseen and unfortunate consequences. The 1st defendant did not remain present in the Court. It did not appear before the Commissioner appointed for the recording of evidence. Orders came to be passed in its absence. All this, Mr. Singh says, is due to oversight, inadvertence and miscommunication.

5.Mr. Parekh, learned advocate for the plaintiffs, very seriously disputes this position. He invites attention to a compilation of correspondence. Prima facie this indicates that the 1st defendant was itself (i.e. not through its advocate alone) repeatedly given notice of the scheduled hearings in Court as also before the Commissioner appointed for recording evidence. Indeed, the Commissioner himself give notice to the 1st defendant amongst others. Despite its attention being repeatedly drawn to orders passed by the Court, the 1st defendant stayed away.

6.It was in those circumstances that the subsequent orders came to be passed. The order of 29th October 2007 directed that should the cross-examination by the 1st defendant not commence on the next scheduled date before the Commissioner, the cross- examination would deemed to be closed. The order dated 18th January 2013 directed the 1st defendant to file its evidence affidavit and affidavit of documents before 31st January 2013. The order of 18th February 2013 noted all three previous defaults and in view thereof and in view of the 1st defendant’s continued absence, its case was closed.

7.In my view, Mr. Parekh is justified in his contention that no party should be allowed to take advantage of its own delays in this manner. Although it is true that between 2007 and 2013 this matter never reached, that is no reason for 1st defendant continued non- compliance. The result of this application being now made in 2014 is that the plaintiffs who have awaited for several decades for hearing of their case since 1986 will be put to a significant disadvantage. This is not something that should be lightly allowed. A defendant that does not conduct its case with diligence should not be granted such indulgence. It is one thing to say that there was some miscommunication between the 1st defendant and its advocate. But that surely cannot mean that the 1st defendant was entitled to throw up its hands and turned a blind eye to the fate of a suit that it claims to have been so diligent in defending for so long.

8.Indeed it is only because the 1st defendant has, in fact, been defending this action from 1986 to 2007 that I am at all inclined to show some latitude to 1st defendant. But even that must be on terms. The 1st defendant must also understand that this matter will now conducted on a fixed and inflexible time schedule at least so far as the 1st defendant is concerned and that it no longer has any right, equitable or otherwise, to seek any adjournment in the present matter unless it is occasioned by an act of the plaintiffs.

9.I intend to put the 1st defendant to terms as a condition precedent for allowing it to cross-examine the plaintiff’s witnesses and to produce any documents. The 1st defendant shall pay to the plaintiffs through their advocates a sum of Rs.1 Lakh, agreed to by Mr. Singh on instructions, as costs and as a condition precedent on

or before 23rd June 2014. On that payment being made, the orders dated 18th January 2013 and 18th February 2013 shall stand recalled. The previous orders of 30th August 2007 and 29th October 2007 shall stand.

10.For the moment the suit will be listed once again on Tuesday, 17th June 2014. On that date, Mr. Parekh, learned Counsel for the plaintiffs will inform the Court as to the availability of his witness. The 1st defendant and its advocates will make arrangements to remain present in Court on a date convenient to the plaintiff’s witness for cross-examination of the plaintiff’s witness. A detailed schedule will be finalised on 17th June 2014, including a schedule for the production by 1st defendant of its documents, affidavit of documents and affidavit in lieu of examination-in-chief. As soon as the cross-examination of the plaintiff’s witness is complete, the 1st defendant will tender its witness’s affidavit in lieu of examination- in-chief, and for this no further time will be granted. Cross- examination of 1st defendant’s witnesses will commence two days thereafter, subject to the convenience of the plaintiffs.

11.Needless to add this entire schedule and the setting aside of these two orders of 18th January 2013 and 18th February 2013 are all conditional upon costs being paid. If costs are not paid on or before 23rd June 2014, the motion shall stand dismissed with costs quantified at Rs.1 Lakh.

Universal Music India Pvt. Ltd. v. Super Cassettes Industries Pvt.Ltd. and 3 Ors.

Case brief

What is this about?

What did the court decide?

Universal Music India Pvt. Ltd. v. Super Cassettes Industries Pvt.Ltd. and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

SBI Capital Market Ltd. Vs Official Liquidator, High Court, Bomay as Liquidator of Trident Steel Ltd. and Ors.

M/S.Ispat Industries Ltd. Vs M/S.Unimin India Ltd.and Ors.

Arun M.Khot Vs Aparna Prabhat Khot and Anr.

Century Mechanical Systems (India) Pvt. Ltd. Vs Cosmo Industrial Products Pvt. Ltd.

Dresswala Fashions Pvt. Ltd.and Ors. Vs Dena Bank of Ors.

Icici Bank Ltd. Vs B.D.Industries Ltd. and Ors.