Counsel's Failure To Argue Written Submissions Not A Ground For Review: Bombay High Court

"Counsel's failure to argue written submissions is not a ground of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight."

Justice GS Patel remarked that allowing parties to take grounds in review pleas or in appeals that weren't argued initially injects an impermissible level of uncertainty into the whole decision-making process.

"These are all attempts to avoid the inevitable…They [There] must come a point when a Court must say enough is enough and they cannot succeed in taking this further," court said.

It was further found that there existed no order permitting those written submissions.

"There is no inward entry from the registry. There is no physically signed set of written submissions. There is only a print out and it has somehow been tucked at the back of the file. That is the level of unfairness with which I am sought to be confronted", the Court remarked.

With this view, the Court went on to dismiss the review petition after imposing heavy cost of Rs.5 lakh on the petitioners.

The Review Petitioners' conduct is deplorable. The Review Petition is certainly frivolous and vexatious and it is an unforgivable waste of judicial time — which, not incidentally, has been to the time disadvantage of other litigants as well.

It was further observed that "the purpose of a court is to make time for a litigant. But no litigant is entitled to squander or waste the time of the court. That is as unfair to a court as it is to other litigants waiting in line."

Justice Patel went on to add that "A litigant has a right to be heard by a court. He has a right to engage a lawyer, who will be heard on that party's behalf. But no party has the right to keep changing lawyers and then having the new lawyers attempt to argue points not raised, given up or rejected…There is no such right."

The Case:

Mahesh and Manish Agarwal, who were respondents in the original Section 9 Arbitration plea filed by Tata Finance approached the High Court in the instant review petition. Justice Patel had passed an order against the Agarwals on March 12, 2021, directing an asset disclosure and granted an injunction. He had then observed the petitioners had, prima facie, no defence at all — they were indubitably borrowers from Tata Finance under finance agreements, and, not having repaid the loan on the terms of the agreement, were in contractual default.

Before the filing of the Review Petition, the Agarwals had filed an appeal. The Counsel instructed by Pan India Legal Services LLP in the appeal court contended that Justice Patel had failed to consider the Agarwals' written submissions in his order passed in March. The Appeal Court had disposed of the appeal by granting the Agarwals liberty to file a review.

The Agarwals then approached the High Court for a review.

In the current review plea, Counsel  appearing for the Agarwal's again relied on written submissions that were not brought to the Court's notice previously.

Senior Advocate Birendra Saraf appeared for Tata Finance and argued that grounds never taken before were being taken in the present writ petition.

Court's findings:

The High Court agreed that the order of 12th March 2021 did not consider the Agarwals' written submissions.

"I do not do so because nobody asked me to. Nobody even told me they had been filed. Nobody briefed for the Agarwals made any arguments on the written submissions", the Court remarked.

Moreover, the grounds as mentioned in the review petition were found to be 'astonishing'. The Court noted that these grounds were not a part of the 'much-vaunted' written submissions or were rejected by the it.

Court's views on the Important Role of a Counsel

Justice Patel made important observations on the vital role played by counsel in a proceeding. He said that a judge can't be expected to go on a "forensic archaeological excavation" of often "mountainous records" to ferret out a case in the petitioner's favour.

"We have counsel for a reason. We expect of them certain skills. Foremost among these is their ability to sanguinely render assistance to the Court. This purpose is fundamental. It is not achieved by saying that counsel's arguments are irrelevant. It is not achieved by saying that counsel overlooked or was not properly briefed or that counsel ought to have but did not take some point."

Counsel often realize, as well they should, that not all arguments taken in affidavits or even in written submissions are worth pursuing, the Court wen on to note.

They confine their arguments to a few points. They know that the rest do not matter and will not convince. If Counsel has not urged a point, the fact that there were written submissions is immaterial if those written submissions were never in fact argued.

With these observations and while terming the review petition to be 'deliberately mischievous', the High Court dismissed the same.

"In my view, this Review Petition is not only thoroughly misconceived but is also deliberately mischievous, and quite possibly vexatious. I believe it is precisely the kind of proceeding that the Commercial Courts Act 2015 ("the CCA") deprecates. It has taken an unconscionable amount of the court's time", the Court said.

Case Title - [Priyanka Communications (India) Pvt Ltd vs Tata Capital Financial Services Ltd.]

Appearances:

Petitioners – Advocates Premlal Krishnan with Dinesh Bhate, i/b Pan India Legal Services LLP

Respondents – Senior Advocate Dr Birendra Saraf along with advocates Rohan Savant, Sachin Chandarana & Chandrajit Das, i/b M/s Manilal Kher Ambalal & Co

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