Yet another order, by Justice Gautam Patel, arguably one of the most watched judges of the Bombay High Court is creating ripples among the legal community and others. The matter was simple. An arbitration was sought to be withdrawn. The petitioner’s advocate, Cyrus Ardeshir sought permission to withdraw and file fresh proceedings. The respondent’s advocate ‘vigorously’ opposed it. The judge decided the matter by allowing the arbitration petition to be withdrawn as dismissed with liberty to file a fresh petition for the same reliefs and on the same cause of action.
The respondent’s lawyer pressed for costs. The Judge agreed. But, as his order says, “Costs must, however, be reasonable”. So here’s what he does. The order says, "Since today is 18th April and having due regard to the merits of the opposition, it is reasonable to award costs in the sum of Rs184. These are payable by account payee cheque only by the Advocates for the Petitioners to the Advocates for the Respondents. The costs are to be paid within six months from today and are subject to deduction of tax at source, if applicable”.
Justice Patel’s order, in his inimitable droll style, which describes the entire sequence of events, makes for interesting reading. His order and the payment of Rs184 is however, a stinging indictment of needless dramatics in the courtroom on a simple matter that ought to have been acceded to and done without wasting the Court’s time with objections. Justice Patel’s track-record indicates that he reserves his most sarcastic observations and innovative orders for cases that seem to be an unnecessary waste of precious judicial time. In this case, the order is categorical that the cost will be paid by one ‘advocate’ to the other — not the client. In other cases, Justice Patel has strongly backed advocates who have done their duty as responsible officers of the court.
In this case, Cyrus Ardeshir, representing the petitioners, KS Chamankar Enterprises tried to withdraw an arbitration petition. "The reason he gives, though unsupported by an Affidavit, is that after the filing of this Petition, the Petitioner found a large volume of material that had earlier escaped its attention. Mr Ardeshir candidly states that there was an action instituted by the Enforcement Directorate and his client’ records were in considerable disarray. The Petition would, in his submission, either require, a substantial amendment, with possible inconvenience to all sides, not least of all the Court, or leave to withdraw with liberty to file a fresh petition with all the material. He says that it is for these reasons alone that the Petitioners have been advised to seek a withdrawal with liberty to file a fresh proceeding," the HC stated.
Justice Patel says to his 'very great surprise', he found the application (by petitioners) was vigorously opposed by Ankit Lohia, the Counsel for Prime Builders. Mr Lohia stated that no such liberty should be granted and no notice was given to them that KS Chamankar would apply for such liberty and no ground has been made out under Order 23 Rule 1(3)(a) or (b) for granting the Petitioner any such leave.
The Court, however found the submission for sub-clause (a) as misconceived and petition was being withdrawn for a correct reason without causing any prejudice to Prime Builders. Justice Patel said, "There is no question of a formal defect. What the argument overlooks almost entirely is the wording of sub-clause (b). The sufficiency of ground in said Clause (b) is a matter between the Petitioner and the Court. What Mr Ardeshir says is correct. It is also necessary to prevent multiple proceedings: there would then have to be an application for amendment, which might or might not be contested, followed by further affidavits and so on, thus only resulting in greater delay. There is no possible prejudice to the Respondents since there is no ad-interim order nor does Mr Ardeshir seek any such order today. Had there been any such order, this would have been a factor in Mr Lohia’s favour. It is also not argued that the liberty sought should be refused on account of anything stated in the Affidavits in Reply."
"In any case, the Respondents’ interests can be sufficiently protected by leaving all contentions open. Mr Ardeshir does not suggest that any arguments from the Respondents should be foreclosed, and quite rightly so. The opposition is without substance," Justice Patel says.
While dismissing the arbitration petition as withdrawn, the HC allowed KS Chamankar liberty to file a fresh petition for the same reliefs and on the same cause of action. The Court said, "All rights and contentions are specifically kept open on both sides."