Mont Blanc Properties And … vs Mont Blanc Co-Operative Housing on 23 October, 2008

                       -:   1   :-


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION

               APPEAL NO.392 OF 2008
                      In
           NOTICE OF MOTION NO.2905 OF 2008




                                                                     
                      In
              SUIT NO.2746 OF 1992




                                             
    Mont Blanc Properties and Industries
    Ltd., a company incorporated under
    the Indian Companies Act, 1956,
    having its registered office at
    Dady Seth Hill, August Kranti Marg,




                                            
    Bombay--400 026.                               : Appellants
                                                  (Orig.Defendants)
         V/s.

    1. Mont Blanc Co-operative Housing




                                    
       Society Ltd., having its registered
       office at Mont Blanc, Dady Seth Hill,
       August Kranti Marg, Bombay 26.
                     
    2. Srichand Girdharidas Narang,
       of Bombay, Indian inhabitants,
       residing at Flat No.12, Mont Blanc,
                    
       Dady Seth Hill, August Kranti Marg,
       Bombay-26.                               : Respondents
                                              (Orig.Plaintiffs)
                        ...
    Mr.Janak Dwarkadas, Senior Advocate, with Mr.Chetan
    Kapadia and Mr.Sanjay Kotak i/b. M/s.P.K.Shroff & Co., for
      


    the appellants.
   



    Mr.Cyrus Ardeshir i/b. M/s.Hariani & Co., for the
    respondents.
                       ...
                           CORAM : SWATANTER KUMAR, C.J.&
                                   S.A. BOBDE, J.





                            Date of Reserving        ): 30.09.2008
                            the Judgement.           )

                            Date of Pronouncing ): 23.10.2008
                            the Judgement.      )





    JUDGEMENT (Per S.A.Bobde,J.)

::: Downloaded on – 09/06/2013 14:01:05 :::
-: 2 :-

1. This is an appeal against the rejection of a Notice of

Motion which has resulted in the suit being proceeded

without Written Statement against the appellants-

defendants.

2. The appellants took out a Notice of Motion to have the

order dated 17.6.2008 set aside and taking the Written

Statement on record. On 26.6.1998 the Court passed an

order directing that if the Written Statement is not

filed, the suit should appear for ex parte decree. On

17.6.2008, the learned Judge noted that the Written

Statement was not filed and, hence, ordered that the suit

should

learned
be proceeded
ig without Written Statement.

Judge trying the suit has declined to condone the
The

delay of 3683 days in filing the Written Statement. The

learned Judge has observed that on 11.12.1997 the suit was

transferred to the list of undefended suits and no efforts

have been made by the defendants to have this order set

aside and even though an order was made directing that

Written Statement may be accepted within two weeks from

the date when the matter was on board on 26.6.1998, the

defendants did not avail of the time and failed to file

the Written Statement. When the matter came up again on

board on 17.6.2008, the Court passed an order that the

suit should proceed without a Written Statement in the

presence of the Advocate. That order was interpreted by

the defendants as an order granting time to the defendants

::: Downloaded on – 09/06/2013 14:01:05 :::
-: 3 :-
to file Written Statement. Accordingly, the defendants

declared the Written Statement on 1.7.2008 and,

thereafter, filed the Written Statement. Apart from the

alleged misinterpretation of the order of 17.6.2008,

according to the defendants, they did not file the Written

Statement for all this time because there were various

litigations between the parties and they were trying to

settle the matter. The talks of settlement failed

sometime in 2003. The learned trial Judge has rejected

the permission to file the Written Statement on the ground

that the defendants failed to file the Written Statement

prior to December 1997; that they did not challenge the

order dated 11.12.1997, did not file the Written Statement

as per the order dated 26.6.1998 after talks of settlement

failed. It cannot be said that the learned trial Judge

has not taken correctly appreciating the failure of the

defendants to file Written Statement. However, it appears

that though the defendants had an opportunity of filing

the Written Statement within two weeks of 26.6.1998, the

matter, in fact, did not come up for hearing for a long

time i.e. till 17.6.2008. It was not as if the failure

of the defendants to file the Written Statement has

obstructed the Court from proceeding to decide the suit by

passing an ex parte decree sometime in the year 1998

itself or even soon thereafter. While it is true that the

defendants ought to have taken adequate steps to file the

Written Statement within the time stipulated by the Court,

::: Downloaded on – 09/06/2013 14:01:05 :::
-: 4 :-
it is difficult to ignore the reality that the matter did

not come up on board for a long time thereafter.

3. In Saga Department Stores Limited v. Falak Home

Developers Pvt. Ltd. (2008 Vol. 110 (7) Bom.L.R. 2370)

this Court has held as follows:-

“6. The expression “Justice of the case
may require” is equivalent to “in the

interest of justice” or “ends of Justice”.
Thus, the paramount consideration under the
scheme of the rules is to achieve justice
rather than frustrate rights of the parties
on technical ground, particularly when the

rights of the other party can be protected
by such terms as may appear in the opinion
of the Court to be just and proper. The

High Court, Original Side Rules, which will
prevail and take precedence over the
provisions of the Civil Procedure Code,
also indicate that the provisions under the

Rules are not as stringent as the
provisions of the Code in regard to the
defaults. The scheme of the High Court,
Original Side Rules is that where the
written statement is not filed as
contemplated under Rule 74, the course is

not provided that a decree will follow as a
natural consequence or automatically. The

Court is still to fix the suit as
undefended and then pass such Orders as it
may deem fit and proper in the facts of the
case including requiring the Plaintiff to
prove his claim. This may result in

passing of a Judgement and a decree but
even before that stage, the Defendant has
been given liberty to take out a notice of
motion for permission to file written
statement and taking such other pleas in
the suit which can be allowed by the Court

subject to such terms and conditions as may
be deemed fit and proper in terms of Rule
91 of the said Rules. Interestingly, the
provisions of Rule 265 are in addition to
and not in derogation to the relevant
provisions contained in Rules 88 to 91.

::: Downloaded on – 09/06/2013 14:01:05 :::
-: 5 :-

Rule 226, in fact, completely dilutes the
impact of specified period provided under
the rules where the parties by consent in
writing can enlarge the time for amending
or filing pleadings or of filing any
delivery of documents. This could be done
without application to the Court or even
the Judge in chambers. It is apparent that

the period indicated in these rules is
directory and not mandatory. It is
directory even to the extent of providing

different options to the Court and the
parties can even get liberty to enlarge the
time fixed by consent.”

Thereafter, this Court, inter alia, concluded as

follows:-

(1) The paramount consideration under the
scheme of the rules is to achieve justice
rather than frustrate rights of the parties

on technical ground, particularly when the
rights of the other party can be protected
by such terms as may appear in the opinion
of the court to be just and proper.

(2) The extension of time is a matter in
the discretion of the Court and could be
granted for justifiable reasons recorded in
writing.”

4. Having regard to the observations made by this Court

and in the circumstances of the present case, we find

that denying the defendants an opportunity to file

Written Statement would frustrate the rights of the

parties, rather than achieve justice. As indicated

earlier, the circumstances would have been quite

different if the Court intended to pass a decree in

favour of the plaintiffs after calling upon the

plaintiffs to prove their claim.

::: Downloaded on – 09/06/2013 14:01:05 :::

-: 6 :-

5. In this case, even though the matter was on board for

filing Written Statement as early as 26.6.1998 when the

Court granted two weeks’ time for the purpose and even

though the Court passed an order directing that the suit

should proceed ex parte, no such proceedings took place.

It appears that, in fact, no order for proceeding ex

parte under rule 89 of the Bombay High Court (Original

Side) Rules, hereinafter referred to as the “Rules”, was

made till 17.6.2008. It is also relevant to note that

the plaintiffs did not take out any application for issue

of a Notice of Motion for a judgement for want of Written

Statement at any time after 26.6.1998 as provided by rule

90 of the Rules.

6. In the circumstances of the case, we are of opinion,

that denying an opportunity to the defendants to file the

Written Statement would frustrate their rights. However,

we cannot be oblivious of their negligence in not filing

the Written Statement within the time stipulated by law

and by the Court. In the circumstances of the case, we

consider it appropriate to permit them to file Written

Statement, however, on payment of costs in the sum of

Rs.50,000/- (Rupees Fifty Thousand only) to the

plaintiffs. Order accordingly.

7. The appeal stands disposed of in the aforesaid terms.

::: Downloaded on – 09/06/2013 14:01:05 :::

-: 7 :-

CHIEF JUSTICE

S.A. BOBDE, J.

::: Downloaded on – 09/06/2013 14:01:05 :::