Allowed

Ashwin Holdings Pvt. Ltd., Thr. Its Aut. Rep., Ranjit Kumar Chowdhury., v. Anthony Fernandes, Thr. His Poa, Rosa Conceicao Fernandes and 6 Ors.

Bombay HC16 Jun 2021WP/834/2019

Case brief

AI extract

What is this about?

The High Court allowed a petitioner's writ petition setting aside an impugned order dismissing an application for production of documents. The court held the authority defect should be cured, allowing document production subject to costs payable to the respondent.

What did the court decide?

Set aside impugned order; allowed production of additional documents; directed petitioner to pay costs of 50,000/- to Respondent No.1.

Ashwin Holdings Pvt. Ltd., Thr. Its Aut. Rep… — Civil Procedure and Limitation | Bombay HC (2021)

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¶2

 Santosh

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IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.834 OF 2019

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Ashwin Holdings Pvt. Ltd.
having its registered Office at
L-41, Connaught Circur-
New Delhi, through its authorized
Representative Mr. Ranjit Kumar
Chowdhury, major, son of late Ltd.
Col. Romendra Nath Chowdhury,
R/o. Block I, Flat No.101, Devashri
Gardens, Alto Porvorim, Bardez, Goa. ….. Petitioner.

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Versus

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1. Anthony Fernandes,
son of late Alex Fernandes, through his
power of attorney holder, Mrs. Rosa
Conceicao Fernandes, resident of
Khobrawado, Calangute, Bardez, Goa.

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2. Village Panchayat of Calangute,
through its Sarpanch,
having office at P.O. Calangute,
Bardez, Goa.

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3. Block Development Officer,
Government of Goa,
Mapusa, Bardez, Goa.
4. Goa Coastal Zone
Management Authority,
through its Members Secretary,
Department of Science, Technology
and Environment, Saligao, Bardez, Goa.

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5. Town and Country Planning

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Department, through the Town Planner,
North Goa, Mapusa, Bardez, Goa.

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6. Directorate of Panchayats,
through the Deputy Director of Panchayats,
North Goa, Panaji, Goa.

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7. State of Goa,

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through the Chief Secretary,
having Office at
Secretariat, Porvorim, Goa. .….. Respondents.

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Mr. Shivan Desai, Advocate for the Petitioner.

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Mr. Kewal Sawant, Advocate for Respondent No.1.

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Mr. Tukaram Gawas, Addl. Govt. Advocate for Respondents No.3, 4,
5, 6, and 7.

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Coram: M.S. Sonak, J.
 Dated: 16th June 2021.

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ORAL JUDGMENT :-

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Heard the learned Counsel for the parties.

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2.Rule. The rule is made returnable forthwith with the
consent of and at the request of the learned Counsel for the parties.

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3.The Petitioner challenges the order dated 9th September
2019 (impugned order) made by the District Judge, North Goa at
Panaji (learned Trial Judge), dismissing the application for production

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of documents.

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4.The Petitioner is the original Plaintiff and the Respondents
are the original Defendants in Civil Suit No. 61/2010, instituted
before the Trial Court seeking several reliefs. This suit was instituted
and verified by one Ranjit Kumar Chowdhury, who was described in
the cause title to the plaint as 'authorized representative' of the
Plaintiff Company.

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5.Respondent No.1 (Defendant No.1), who is the main
contesting Defendant, filed his written statement on 12/12/2010. In
paragraph (b), Defendant No.1 specifically questioned the authority
of Ranjit Kumar Chowdhury to file the suit by contending that
Ranjit Kumar Chowdhury had no authority to file the suit.

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6.Despite the aforesaid, Plaintiff took no steps to establish the
authority of Ranjit Kumar Chowdhury to file and pursue the suit.
This was on the specious plea that the issues which were cast on 24th
March 2011, did not raise any specific issue regards the authority of
Ranjit Kumar Chowdhury to institute or pursue the suit.

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7.In the course of the trial, on 21/12/2017, Ranjit Kumar
Chowdhury admitted that there was no specific clause in the
resolution marked Exhibit 82 authorizing him to file a suit or to
depose in the suit. He also admitted that since Plaintiff is a

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Company, everything has to be done by passing a resolution. On 5th
March 2018, to which date the cross-examination of Ranjit Kumar
Chowdhury continued, he admitted that he was not the Director of
the Plaintiff Company, but only the authorized signatory of the
Plaintiff Company. He admitted that there was a mistake in the
affidavit which had styled him as director of the Company. To the
pointed cross-examination as to whether he had any authority to
institute the suit, Mr. Chowdhury mostly denied knowledge.

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8.On 17/8/2019, Plaintiff applied to the Court for framing
additional issue since, at the stage of final hearing of the suit,
Defendant No.1 naturally raised the contention that the suit was not
maintainable because, Ranjit Kumar Chowdhury had no authority to
either institute the suit, or pursue the same. In the application,
Plaintiff acknowledged that such an objection was raised by
Defendant No.1 at the earliest opportunity i.e. in the written
statement.

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9.The Trial Court allowed framing of such issue as prayed for
by Plaintiff. Thereafter, on 26/8/2019, Plaintiff applied for
production of resolution dated 17/8/2019 on record. The resolution
purported to ratify the actions of Ranjit Kumar Chowdhury in the
suit and further expressly authorized him to pursue the suit.
Defendant No.1 opposed the said application by filing a reply dated
31/8/2019. By the impugned order dated 19/9/2019, the learned

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Trial Judge has dismissed the said application. Hence, the present
Petition.

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10. Mr. Desai, the learned Counsel for the Petitioner submits that the defect of nature pointed out by Defendant No.1 can be remedied at any stage of the proceedings. He submitted that the resolution was already placed on record. However, by way of abundant caution, a fresh resolution dated 17/8/2019 was adopted by the Plaintiff Company, and leave was applied to place the same on record. The application should have been allowed in the normal course considering the law laid down by the Hon'ble Supreme Court in M.M.T.C. Ltd. and another vs. MEDCHL Chemicals and Pharma (P) Ltd. and another1 and United Bank of India vs. Naresh Kumar and ors.2. He submitted that no prejudice whatsoever will occasion to the Respondents and the prejudice, if any, could have always been compensated by costs. On instructions, he submits that the Petitioner offers to pay costs of 50,000/- to Defendant No.1 if ₹ leave is granted to the Petitioner to produce the additional documents.

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11.Mr. K. Sawant, learned Counsel for Respondent No.1
submits that the Petitioner has been completely lax in pursuing the
suit. He points out that the objection was raised way back in the year
2010 and it is only after 9 years that some resolution is purported to

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1 (2002) 1 SCC 234

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2 (1996) 6 SCC 660

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have been passed to authorize Ranjit Kumar Chowdhury. He submits
that such a resolution is not genuine and using such a resolution, the
defects which go to the root of the matter can never be remedied. He
submits that Defendant No.1 is a poor mundkar, who is being
harassed for the last 10 years by the Petitioner which has purchased a
neighboring plot and put up commercial establishments therein. He
submits that there is no error in the impugned order and the
extraordinary jurisdiction may not be exercised in favor of the
Petitioner.

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12.Mr. T. Gawas, learned Counsel for Respondents No.3 to 7
left the matter to the discretion of the Court.

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13. Rival contentions now fall for determination.

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14.Though, there is merit in the contention of Mr. Sawant
that no steps were taken by the Petitioner to remedy the defects
pointed out by Respondent No.1 way back in the year 2010, the
question is whether leave should be rejected to produce the resolution
which now purports to ratify the action of Ranjit Kumar
Chowdhury and confer upon him, maybe ex post facto authority to
institute the suit and pursue the suit. No doubt, all this will occasion
some prejudice to Respondent No.1 but, this is a prejudice that can
be compensated in terms of costs.

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15.The decisions relied upon by Mr. Desai do suggest that the

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parties should not be non-suited on account of such technicalities
and, further, the Courts should be liberal in permitting the parties to
rectify such defects even though the rectifications may have been
applied for belatedly. This is not a case where some backdated
resolution is attempted to be produced. The resolution is dated
17/8/2019 which purports to ratify the authority of Ranjit Kumar
Chowdhury and the acts undertaken by him earlier concerning the
suit.

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16. Having regard to the law laid down by the Hon'ble Supreme Court, the application made by the Petitioner for leave to produce additional documents ought to have been allowed. No doubt, substantial costs could have been imposed on the Petitioner having regard to the prejudice suffered by Respondent No.1. Now that the Petitioner has offered to pay costs of 50,000/- to ₹ Respondent No.1, prejudice to Respondent No.1, to a great extent, can be mitigated.

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17.This Petition is, therefore, disposed of by making the
following order :

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(a) The impugned order dated 09/09/2019 is, hereby, set aside and
the Petitioner's application dated 26/08/2019 for production of
additional documents is, hereby, allowed.

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(b) The aforesaid is subject to the Petitioner paying costs of 50,000 ₹ to Respondent No.1 on or before 7th July 2021. In case there is any

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difficulty in making the payment, the Petitioner can deposit the costs
before the Trial Court on or before 7th July 2021.

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(c) If the costs as aforesaid, are indeed paid or deposited before 7th
July 2021, the parties to appear before the Trial Court on 12th July
2021 at 10.00 a.m. and file an authenticated copy of this order.

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(d) The Trial Court to then permit Respondent No.1 to withdraw the
costs unconditionally.

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(e) If there is failure to pay or deposit the costs, then, this Appeal shall be deemed to have been dismissed with costs of 25000 which ₹ can be recovered by Respondent no. 1 in execution.

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18.All concerned to act based on an authenticated copy of this

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order.

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SANTOSH S MHAMAL Digitally signed by SANTOSH S MHAMAL Date: 2021.06.18 12:14:01 +05'30'

Ashwin Holdings Pvt. Ltd., Thr. Its Aut. Rep., Ranjit Kumar Chowdhury., v. Anthony Fernandes, Thr. His Poa, Rosa Conceicao Fernandes and 6 Ors.

Case brief

What is this about?

What did the court decide?

Ashwin Holdings Pvt. Ltd., Thr. Its Aut. Rep., Ranjit Kumar Chowdhury., v. Anthony Fernandes, Thr. His Poa, Rosa Conceicao Fernandes and 6 Ors.

Case brief

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What did the court decide?

What the court decided

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Coram

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