This order grants a Chamber Summons filed by a Caveator to condone delay in filing an Affidavit in Support, attributing the delay to a notary's omission to get the signature. The court also orders payment of Rs. 5,000 costs by the Caveator.
Chamber Summons made absolute upon Caveator agreeing to pay Rs. 5,000 costs.
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33-CST NO.23-2016.DOC
JSN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.23 OF 2016
IN
CAVEAT (L) NO.145 OF 2015
IN
TESTAMENTARY PETITION NO.1609 OF 2013
Mukesh Poonamchand Parmar...Applicant
And
Hrishikesh Arvind Mafatlal...Petitioner
Versus
Mukesh Poonamchand Parmar… Caveator
Mr. A. Postwala, with Dolly Kotwani, i/b. Vigil Juris for the
Petitioner.
Mr. Kezer A. Kharwala, for the Applicant.
CORAM:G.S. PATEL, J.
DATED:21st March 2016
P.C.
1. Heard.
2.The Chamber Summons is filed by the Caveator. He seeks
that a delay in filing the Affidavit in Support of the Caveator be
condoned.
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33-CST NO.23-2016.DOC
3.Actually, the matter is quite unusual. The Caveator filed his
Caveat in time. He drew up an Affidavit in Support on his Caveat.
He took it to the Notary. That Notary dated it, stamped it and
registered it but omitted to do one thing that he ought to have done,
viz., take the signature of the Caveator on it. Armed with this
thoroughly notarised stamped, sealed affidavit, but which did not
bear his signature, the Caveat lodged the Affidavit with the
Registry. All of this happened around 16th May 2015. Several
months later, on 18th November 2015, the Registry seems to have
realized that the signature of the Caveator was missing on this
notarised Affidavit. The Caveator’s advocate was summoned to the
Registry.
4. Hence this Chamber Summons.
5.Clearly this is a case of oversight not only by the Petitioner
but also by the Notary and by the Caveator’s advocate. I cannot
possibly let the Caveator suffer for this.
6.I note the vigorous opposition to the Chamber Summons
from the Petitioner. Learned Advocate for the Petitioner as part of
his protest, says that it is not correct that the Caveat and Affidavit
in Support were filed in time but, according to him, were at least
two weeks beyond time. Learned Advocate for the Caveator points
out that what is overlooked in all of this is that there were parallel
proceedings going on before the Prothonotary and Senior Master of
this Court and which caused the delay.
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33-CST NO.23-2016.DOC
7.In any case all this is irrelevant since I must condone the
delay. The only question is whether the Petitioner is entitled to
costs and if so in what amount. Learned Advocate for the Caveator
agrees that costs of Rs.5,000/- are reasonable. He agrees to pay this
amount. The Learned Advocate for the Petitioner with proper grace
and courtesy accepts this offer of payment of costs. So noted.
8. Subject to payment of costs, the Chamber Summons is made absolute in terms of prayer clauses (a) and (b).
9. List the matter for framing of issues on 5th April 2016.
(G. S. PATEL, J.)
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1 issue framed by the court
Whether delay in filing Affidavit in Support of Caveat due to notary oversight should be condoned.
Hrishikesh Arvind Mafatlal
Mukesh Poonamchand Parmar
G. S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court