Oil And Natural Gas Corpn. Ltd. v. Urmila And Co.Pvt.Ltd.

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION NOTICE OF MOTION NO. 2257 OF 2018 IN COMM. SUIT NO. 7 OF 1996 Oil and Natural Gas Corporation Ltd.

...Applicant In the matter between Oil and Natural Gas Corporation Ltd.

...Plaintiff

Versus

Urmila and Co. Pvt. Ltd.

...Defendant Mr. Aliabbas Delhiwala, a/w Usha Singh & U. Baria, i/b Vyas & Bhawal, for the Plaintiff.

Mr. Jaydeep Raut, a/w Manik Joshi & Mantal Bajpai, i/b Crawfard Bayley & Co., for the Defendant.

CORAM:

N. J. JAMADAR, J.

DATED :

4th NOVEMBER, 2019 PC:- 1.

This Notice of Motion is taken out by the plaintiff with a prayer to review and recall the order of closing the evidence of the plaintiff, passed by this Court on 27th September, 2018. 2.

At the outset, Mr. Delhiwala, the learned Counsel for the plaintiff submits that the plaintiff does not press the prayer of review and restricts the motion for recalling the order of closing the evidence of the plaintiff.

3.

This Court by order dated 31st August, 2018, had posted the matter on 27th September, 2018, for marking of documents/recording of evidence with a specifc direction that 1/4

the plaintiff's frst witness shall remain present in the Court on 27th September, 2018. However, on 27th September, 2018, when the matter was called out, the plaintiff's witness, whose examination-in-chief was tendered before the Court, was absent. It was then submitted that the said witness remained absent as he had to attend to some urgent work on that day. This Court thus directed that the plaintiff's evidence stood closed. The Court further directed that the defendant to fle fresh list of witnesses, on affdavit in lieu of examination-in-chief together with compilation of documents.

4.

The plaintiff has, thus, taken out this Notice of Motion to recall the said order dated 27th September, 2018. 5.

It is submitted on behalf the plaintiff that the plaintiff's witness was prevented by a genuine and suffcient cause from attending the Court on 27th September, 2018 and the plaintiff would suffer serious prejudice in the event the plaintiff is not permitted to lead evidence to substantiate his claim. 6.

The defendant has resisted the prayer by fling Affdavit-inreply. The ground mentioned in the Notice of Motion for recalling the order is stated to be contrary to the submission made before the Court on 27th September, 2018. An endeavour was made to demonstrate that the plaintiff has been guilty of 2/4

protracting the trial of the suit on one or the other pretext, and, taking into account the totality of the conduct of the plaintiff, this Court had closed the plaintiff's evidence. The plaintiff, therefore, does not deserve the relief as claimed. 7.

Mr. Raut, the learned Counsel for the defendant took the Court through the orders passed by this Court on 19th December, 2014, 14th November, 2017 and 31st August, 2018, to bolster up the submission that the plaintiff has been remiss and negligent in prosecuting the suit.

8.

The material on record may indicate some amount of laxity on the part of the plaintiff in prosecuting the suit. However, on the perusal of the order dated 27th September, 2018, the sole reason for closing the evidence of the plaintiff appears to be the absence of the plaintiff's witness for marking of the documents on that date.

9.

It is trite that the Courts are expected to lean in favour of the adjudication of the dispute on merits. Thus, in order to advance the cause of justice and provide an effcacious opportunity for the plaintiff to lead evidence in support of the suit claim, in my considered opinion, the order dated 27th September, 2018, closing the evidence of the plaintiff, deserves to be recalled.

3/4

10.

Mr. Raut, the learned Counsel for the defendant submitted that the defendant has suffered costs and prejudice in putting the efforts to prepare the Affdavit in lieu of examination-in-chief on the assumption that the plaintiff's evidence has been closed. The inconvenience and prejudice caused to the defendant is not such that it cannot be compensated by way of costs. Hence, the following order:

(i) The Notice of Motion No. 2257 of 2018 stands allowed. (ii) The order dated 27th September, 2018, closing the plaintiff's evidence, stands set aside, subject to costs of Rs.2,000/-, to be paid by the plaintiff to the defendant, within three weeks from today.

[N. J. JAMADAR, J.] 4/4