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Refusing to entertain its failure to comply with orders of the court any longer, Justice GS Patel of the Bombay High Court last week imposed costs of Rs. 4,50,000 on a charitable trust.
Justice Patel was dealing with a suit dating back to 2009, in which the plaintiff trust had been ordered to file its affidavit by November 5, 2016. This, after having sought two previous extensions to comply, which had been granted.
When the matter came up for hearing on February 27, the affidavits had still not been filed, and the plaintiff’s counsel KR Patel, briefed by Crawford Bayley, sought a week’s extension.
Gargi Bhagwat, appearing for the defendants, opposed the application on the ground that there was no valid reason for non-compliance, and urged the Court to impose terms at the very least.
Justice Patel agreed with her contention and imposed costs of Rs 1000 per day of delay on the plaintiff trust, starting from November 25, 2016, for a period of 450 days thereafter.
While arriving at this number, the judge said that the time for picking random figures in cases where costs were being imposed for a delay had gone, and that costs must be reflective of the actual period of delay.
“Fixing ad hoc figures like this is counter-productive. Parties believe that even if the delay is inordinate, the costs of that delay will be negligible; and hence they continue to extend the delay. The costs must be real.”
Justice Patel also observed that it was time to send out a message that non-compliance of court orders would have real consequences.
“They must be sufficient to convey the message that non-compliance with our orders brings consequences; that these consequences are inevitable and unavoidable; and the consequences are not some piffling trifle.”
The judgement also recorded that costs of Rs 1000 per day were not unreasonable in this day and age, especially in city such as Mumbai.
“I do not think that, in this day and age, and especially in this city, costs of Rs.1000 per day are at all unreasonable. Anything less than that is illusory and meaningless and the time has gone when a Court could, would or should pick up some utterly random figure like Rs.5,000 or Rs.25,000, a number wholly without tether to the actual days of delay.”
He added that the defendants would have to deposit the said amount with the Registry by March 7, and that the date for fillings would be extended till that date, subject to the sum being deposited.
The matter may have ended there, had the plaintiff’s counsel not made a mentioning at 3:00 pm on the same day, pleading for a reduction of the costs imposed. The fact that the plaintiff was a charitable trust not only failed to cut ice with the court, but also invited some scathing observations on its functioning and its trustees.
“That a trust should be so utterly negligent about its own case is reason enough to warrant immediate action against the trustees and have every one of them removed. A public trust has a higher duty of care, not a lower one.”
Terming the submissions “utterly egregious”, Justice Patel went on to observe that all parties were the same before the court.
“…what am I being told? That because the 1st Plaintiff is a trust therefore a different standard applies? Before courts, all parties are exactly the same. We will make exceptions for the poor, the illiterate, the helpless. They will receive our protection. But educated trustees charged with a solemn fiduciary duty will not get a free pass only because they claim to espouse some worthy cause.”
The judge went on to observe that for far too long, it has been assumed that courts will condone delays. In his opinion, it was time to put that assumption to rest.
“Let me put it plainly. No more adjournments. No more ‘tareek pe tareek’. Enough is enough. That a Court will endlessly grant adjournments is not something that parties or advocates can take for granted. Nor should they assume that there will be no consequences to continued defaults and unexplained delay.”
Justice Patel added that the mentioning by the plaintiff in itself invited further costs, but he would make an exception this once. He, however, added that future applications for reduction in costs would result in the daily costs of delay being doubled.
Read the judgement
HT to @superselector5