Citizens' Issues
Justice Patel grants 'reasonable' costs of Rs184 because it was 18th April!
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 An arbitration was sought to be withdrawn.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 The judge decided the matter by allowing the arbitration petition to be withdrawn as dismissed with liberty to file a fresh petition for the same reliefs and on the same cause of action.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."

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COMMENTS

Bapoo Malcolm

6 months ago

This case is one that shows that courts are primarily temples of truth; before justice. All evidence must be allowed to be on the table. Even if found later; provided due diligence had not discovered it earlier. This does not include purposeful concealment.

Then there is the penchant amongst lawyers to keep on asking for "Costs". To cut matters short, amounts can be doled out. Of course, the receiver can always appeal the order. Then, ask the client to spend more; not necessarily to recover the spend.

All told, it can always be considered a moral victory; all be it a Pyrrhic one.

Bapoo Malcolm

6 months ago

Want to read more on frivolous suits? Please keep your eyes peeled on Moneylife's next issues. There is an article tentatively titled, " WANT TO SPEED UP THE COURTS? HERE’S ONE WAY".

The Dhoni story in today's paper is another example. Everybody and his aunty is a "religious" person. One whose 'sensibilities' are disturbed; without his having any sense.

There is more to come; by way of "religious" cases. We will spend more time and money on cows and their food, while millions of children are dying due to lack of nutrition.

And then, there's always Aarey to grab in the name of protection. All done legally, of course. Through meaningless suits with hidden agendas.

Only some courts are willing to call a spade a shovel. Let's pray for more.

Bapoo Malcolm

6 months ago

That's a lot more than what I had got, Rs. 30/- only, for a stupid matter filed against me. And the advocate took it, saying it was his!

Simple Indian

6 months ago

Our legal system is notorious for prolonged delays, with civil cases spanning across generations of accused/complainants. Hence, to reduce the burden on Courts, the laws should be amended to impose heavy fine &/ prison term to complainants / accused (and perhaps their lawyers too) for filing frivolous cases and wasting the time of the Court. Just as a stringent punishment of imprisonment deters people from indulging in contempt of court, wasting its time should also be punishable.

Ramesh Bajaj

6 months ago

I have come to the conclusion that going to Court is for the extremely well heeled.

Lawyers to go on half-day countrywide strike on Friday
New Delhi, More than 14 lakh lawyers across the country will observe a half-day strike on Friday to protest against Law Commission recommendations, including a proposal to ban strikes by advocates, the Bar Council of India (BCI) said on Thursday.
 
Lawyers will abstain from court work after lunch on April 21 and also burn copies of the Law Commission recommendations and the Advocates Act (Amendment) Bill 2017, BCI Chairman Manan Kumar Mishra told media here.
 
The Law Commission had also suggested that lawyers should be slapped with penalties if they resort to strike in future.
 
The BCI has dubbed the amendments proposed by the Law Commission in the Advocates Act as "draconian, anti-lawyers, unconstitutional, undemocratic and anti-people".
 
"The Law Commission recommendations are against the legal profession and independence of the Bar," the lawyers' body said.
 
Mishra said if Law Commission's "anti-lawyers recommendations" were not rejected by the government, the lawyers will hold a protest march from the Patiala House Courts to Rajghat in the national capital on May 2.
 
Thereafter, he warned, rallies and 'jail bharo' campaign will be launched by the Bar Council if the situation still remained deadlocked.
 
As per the BCI, there are around 14.5 lakh lawyers across the country, as of December 2016.
 
"The regulation and control of the legal profession and legal education is proposed to be handed over to non-lawyers. Advocates will have to face disciplinary proceedings conducted by people not at all connected with the legal profession," the BCI Chairman said.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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COMMENTS

Vaibhav Dhoka

6 months ago

It is professional blackmailing.The ultimate looser is litigant whose voice has been too shrill to be heard.

For a Comma, a Case Can Be Lost
Judge David Barron had this to say. “For want of a comma, we have this case.”
 
Language is the lawyer’s best weapon. It gets sharpened in the cut-and-thrust of intellectual battles in court. Those who shy away from the blood-letting, remaining ensconced in their offices, churning out page after page, inevitably submit to errors. The sharpening of claws is before a judge; because, finally, it is he who delivers the coup de grace, in the form of a judgement. A single word, misspelt or misplaced, can often mean the difference between a win and a loss. Or life and death.
 
It is said that the ex-minister, P Chidambaram, argued for two days, in the Supreme Court, over the positioning of a comma. While the outcome is not important, the value of a comma cannot be over-emphasised. 
 
Commas make interesting cases. 
 
A woman telegraphs her husband: “Have found wonderful bracelet. Price seventy-five thousand dollars. May I buy it?” Her alarmed husband replies, by telegram: “No, price too high.” The telegraph operator misses the comma after the word ‘No’, and the message now reads: “No price too high.” Elation, and her husband’s shock! He sues the telegraph company.
 
You be the judge. Would you allow such a demand?
 
The man won and, from that point on, telegraph rules required operators to spell out punctuation rather than use symbols. Remember the word—STOP—at the end of every sentence in telegrams? No price was too high to avoid the same mistake.
 
Commas had deadly effect when not used, or added, indiscriminately. Sir Roger Casement was hanged because a comma had been misinterpreted. The law then was unsure whether treason on foreign soil was actionable. A comma would have solved the problem. But it was missing and Sir Casement could not be freed. However, the court decided that a comma should be read in the unpunctuated, original, Norman-French text, crucially altering the sense; enough to convict Sir Roger.
 
Sir Casement was hanged, but his immortal last words gave way to the epigram, ‘Hanged by a comma’. 
 
Happy comma stories abound. ‘PARDON IMPOSSIBLE, TO BE SENT TO SIBERIA’ was purposely tampered to read, ‘PARDON, IMPOSSIBLE TO BE SENT TO SIBERIA’. Commas can make a life-and-death difference.
 
Non-macabre events also have ‘comma stories’. “Tropical fruit-plants for the purposes of propagation…” were not to be charged import duty. Mistakenly it read as “Tropical fruit, plants for the purposes of propagation…” thus allowing all tropical fruits to be imported into the US duty-free, the comma being read as ‘and’. The loss? A million dollars.
 
Back to Justice Barron. He had to decide on the rule that said, “... the protection of the overtime law does not apply to: The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of…” The parties’ (drivers) dispute concerned the meaning of the words “packing for shipment or distribution.” A comma appearing after the word, ‘packing’, would mean ‘packing for both’. Otherwise, it would mean two different activities, one of packing and another of distribution.
 
You be the judge. Which interpretation would you prefer?
 
There is what is called ‘legal fiction’. It allows for equity. Equity, often, means ‘balance of convenience’. It asks: What was the intention of the law-makers (and their drafters)? In this case, the judgement sided with the drivers.
 
Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”
 
PS. The author often has verbal tussles with the editor over the overuse of commas. He now rests his case.
 

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COMMENTS

Bapoo Malcolm

6 months ago

This normally happens when the drafter knows what he is doing, but, he does not go into the reader's mind. This sentence may be better said like this. 'Normally, this happens when only the drafter knows what he is doing. He must also put himself into the reader's mind.'

Loooong sentences, convoluted legalese, never-ending paragraphs, all lead to problems. Another devil, raising its head, is the SMS language. Abbreviations can create havoc. An advertisement in the Economic Times, a month back, gave the address of a seminar by a few capital letters. No more. Today, I am still agonising over MSNBC, in a law article.

There is another penchant. The 'high' of making laws. Nice for coffee table talk; bad for implementation. Immortality may, or may not, flow from drafting. Therefore, laws cannot be left to one or two individuals. One cannot see further than one's nose. It's a fact. Maybe the judiciary can be included in vetting the drafts.

The good that men do is oft interred with their bones. The evil lives on after them. And bad laws play hell into generations to come.

There is a strong move to write legal stuff in plain language. Am part of some sites. Surprisingly, the move for simple English in courts had started in South India, some years back, by an Englishman. Maybe 20, 25 years ago.

If anyone is interested, can send my briefs, in simple English, for study.

The rule of thumb should be this. a) Remember that English is a lazy language, as my Mom had repeatedly said. b) Keep sentences to a maximum of 20 words. Maybe 25. Paragraphs to 70 or 80 words. Explain each topic as if you are talking with, not to, a 10-year old.

Then, see the difference.

Drafting is an art. Any and every babu thinks he can do it. No, he cannot. It cannot be a solo effort. One way to avoid complications is to allow the courts to vet the draft. Another person can spot areas of confusion. These exercises will lead to fewer problems.

vswami

6 months ago

Makes for a highly theoretical exposition of the vital significance of so called 'punctuation' ; and of the role it has or is expected to play, in the task of law-making, so also in administration and adjudication. To realize, given 'the nature of things' / extraneous considerations, etc., inevitably coming into play in the whole process, what is ideal may not always be practical. For finer points of most concern, refer some related previous Posts in public domain.

In short, - the cryptic observation of the Judge,- “For want of a comma, we have this case.” may also be taken to imply that, because of use of an extra comma, or in an inappropriate context, the possibility of the balance being tilted to one side- 'the case' being lost or won- cannot be ruled out.

Suresh

6 months ago

Choro, mat maro!
Choro mat, maro!

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