Case Note & Summary
The applicant, Suresh Lachhmandas Raheja, the original plaintiff in Suit No.3190 of 2006, filed an application under Rule 133 of the Bombay High Court (Original Side) Rules, seeking to have a question decided by a Judge regarding an order passed by the Prothonotary and Senior Master on 29 January 2008. By that order, the Prothonotary had accepted a security bond and undertaking from the first respondent as compliance with a Division Bench order dated 17 January 2008 directing the plaintiff to furnish security of Rs.200 Crores. However, a learned Single Judge on 1 July 2010 set aside that order, directing the plaintiff to furnish tangible assets of that value. The Division Bench confirmed this on 29 July 2010. The plaintiff then applied to the Prothonotary under Rule 133 on 30 July 2010, which was beyond the four-day period from the order of 29 January 2008. The Prothonotary refused to adjourn the matter to a Judge. The court held that the application was clearly out of time and no sufficient cause was shown for the delay. The court also noted that the order of 29 January 2008 had already been set aside by the learned Single Judge and confirmed by the Division Bench, rendering the application infructuous. The application was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Adjournment to Judge - Rule 133 Bombay High Court (Original Side) Rules, 1980 - Limitation - Application for adjournment to Judge must be made within four days from the order complained of; if made beyond four days, the Prothonotary may adjourn only if satisfied of sufficient cause for delay - In the present case, the application was filed after a delay of four days and no sufficient cause was shown - Held that the Prothonotary and Senior Master correctly refused to adjourn the matter (Paras 1-5).
Issue of Consideration
Whether the application under Rule 133 of the Bombay High Court (Original Side) Rules, filed beyond the prescribed period of four days, should be adjourned to a Judge for consideration of the order of the Prothonotary and Senior Master dated 29 January 2008.
Final Decision
The application under Rule 133 is dismissed. No order as to costs.
Law Points
- Rule 133 of Bombay High Court (Original Side) Rules
- 1980
- Limitation for filing application for adjournment to Judge
- Sufficient cause for condonation of delay
- Security bond and undertaking not equivalent to tangible assets
Case Details
2010 LawText (BOM) (11) 38
Application under Rule 133 of the Bombay High Court (Original Side) Rules in Appeal No.270 of 2007 in Notice of Motion No.3899 of 2006 in Suit No.3190 of 2006
Mr. R.A. Dada, Senior Advocate with Mr. Zubin Behramkamdin, Mr. Vivek Vashi, Ms. Anusha Jagdeesh i/b Bharucha & Partners for the Applicant; Mr. I.M. Chagla, Senior Advocate with Mr. H. Jagtiani, Mr. Naval Agarwal, Mr. S. Bhole and Mr. B. Zaveri i/b Kanga & Co. for Respondent No.1 / Original Defendant; Mr. Chetan Kapadia with Mr. Mayur Khandeparkar i/b Mahimtura & Co. for Respondent No.2 / Original Defendant No.1
Suresh Lachhmandas Raheja
Ferrani Hotels Pvt. Ltd. and others
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Nature of Litigation
Application under Rule 133 of the Bombay High Court (Original Side) Rules seeking adjournment to a Judge of an order passed by the Prothonotary and Senior Master.
Remedy Sought
The applicant (original plaintiff) sought to have the order of the Prothonotary and Senior Master dated 29 January 2008 adjourned to a Judge for decision.
Filing Reason
The applicant was aggrieved by the order of the Prothonotary and Senior Master dated 29 January 2008 which accepted a security bond and undertaking as compliance with a Division Bench order directing security of Rs.200 Crores.
Previous Decisions
Division Bench order dated 17 January 2008 directed plaintiff to furnish security of Rs.200 Crores; Prothonotary order dated 29 January 2008 accepted security bond and undertaking; Learned Single Judge order dated 1 July 2010 set aside the Prothonotary's order and directed tangible assets; Division Bench confirmed on 29 July 2010.
Issues
Whether the application under Rule 133 was filed within the prescribed period of four days from the order complained of?
Whether sufficient cause was shown for the delay in filing the application?
Submissions/Arguments
The applicant argued that the application was within time as the order of the Prothonotary was still subsisting and the delay was due to the pendency of appeals.
The respondents contended that the application was filed beyond four days from the order of 29 January 2008 and no sufficient cause was shown.
Ratio Decidendi
Under Rule 133 of the Bombay High Court (Original Side) Rules, an application for adjournment to a Judge must be made within four days from the order complained of. If made beyond that period, the Prothonotary may adjourn only if satisfied of sufficient cause for the delay. In this case, the application was filed after a delay of four days and no sufficient cause was shown, hence the Prothonotary correctly refused to adjourn. Additionally, the order sought to be challenged had already been set aside by a learned Single Judge and confirmed by the Division Bench, rendering the application infructuous.
Judgment Excerpts
Rule 133 reads thus : 'Any party desiring to have any question decided by the Prothonotary and Senior Master, whether disputed or not, adjourned to a Judge, may apply to the Prothonotary and Senior Master for such adjournment within four days from the passing of the order complained of.'
The application was made on 30 July 2010. The order which is sought to be challenged is of 29 January 2008. The application is clearly out of time.
The order of the Prothonotary and Senior Master dated 29 January 2008 has been set aside by the Learned Single Judge on 1 July 2010 and that order has been confirmed by the Division Bench on 29 July 2010. The application is, therefore, infructuous.
Procedural History
Suit No.3190 of 2006 was filed. Notice of Motion No.3899 of 2006 was taken out. Appeal No.270 of 2007 was filed. On 17 January 2008, a Division Bench directed the plaintiff to furnish security of Rs.200 Crores. On 29 January 2008, the Prothonotary and Senior Master accepted a security bond and undertaking. On 1 July 2010, a Learned Single Judge set aside that order and directed tangible assets. On 29 July 2010, the Division Bench confirmed the Single Judge's order. On 30 July 2010, the plaintiff filed an application under Rule 133. The Prothonotary refused to adjourn. The present application was heard on 26 November 2010.
Acts & Sections
- Bombay High Court (Original Side) Rules, 1980: Rule 133
