An Open Appeal for Reform in Vacation Court Proceedings: Addressing Litigants’ Hardships in the Bombay High Court

MATHEWS J. NEDUMPARA

Advocate

31st October, 2024

To,

Hon’ble Shri Devendra Kumar Upadhyaya,

Chief Justice of the High Court of Judicature

At Bombay

May it please your Lordship,

Sub: The painful and wholly avoidable hardship and injustice caused to the litigant public by the unfortunate manner in which the affairs of the Court are conducted during the vacations.

1. My humble Self, as a Lawyer primarily practicing in the High Court of Bombay, one who by sheer accident happened to come as an outstation Lawyer, has been watching with a sense of despair and helplessness, the grave hardship which the litigants who approach the Court for urgent relief during the vacation are made to suffer. I had taken up the issue invariably with all the Chief Justices since I became a regular practitioner of the Bombay High Court. Mumbai being the commercial capital of the country, it has probably one of the largest volumes of litigation. I have not seen more than four judges being appointed as vacation judges. The lawyers and litigants who crowd the Court in the morning have to beg to the Bench for permission to file and that process sometimes consumes even half a day. I have seen situations where the lawyers have to wait for hours, for the division bench to be over for the single bench to sit.

2. The immediate reason for which I write the instant open letter is that I had to move the Division bench of the High Court for a Writ in the nature of prohibition restraining the NCLT from passing an order under Section 7 of the IBC, at the hands of my client, Mrs. Manisha Mehta, the promoter of an MSME Company. Without delving into the facts, the NCLT is a coram non judice, the Petitioner being an MSME and my client apprehended that the NCLT acting on extraneous considerations would pass an adverse order against her.

3. On 29.10.2024, my junior, Adv. Hemali Kurne sought permission to file a Petition before the bench of Shri Justice Sandeep Marne. The Court declined permission saying – ‘no urgency’, without the Court obviously having a clue of the complex issues the case entails. My client was anticipating unfair action at the hands of the NCLT and once again mentioned the matter at 2.30 pm. The bench headed by Justice Marne without even allowing the Petitioner to speak a word repeated that there was no urgency. At 4.38 pm my client received an email from the registry of the NCLT that her case was listed on 29.10.2024. The Advocate on record also did not receive any intimation regarding the listing of the case. As aforesaid a Writ Petition had been prepared in anticipation of unjust orders at the hands of the NCLT. The said Writ Petition, which was duly affirmed and notarized, was rendered useless with the change of circumstances.

4. On the very next day, namely, at 10.30 am, my Client along with Adv. Hemali Kurne mentioned the matter while I tried to enter appearance online, which I could not do since I was not admitted to the VC. The Bench of Justice Marne without caring to listen to my junior or the litigant, rejected the permission to file the Petition stating that, “We had rejected it yesterday”. At my instance, once again they tried to mention at 2.30 pm. The Court then asked them to move before the new Bench, namely, that of Justice Sharmila Deshmukh and Justice Jitendra Jain, as well as advised them to tender a praecipe before itself. At 4.30 pm my junior was told that the praecipe had been rejected. In the meantime, my client had received a message from the IRP, seeking to take control over the company.

5. I was left with no option that to take a late-night flight to Bombay. When I mentioned the matter at 10.30 am today before the Bench headed by Justice Deshmukh, Justice Jain was pleased to recuse himself. In normal circumstances, if a bench were to recuse there is an alternative mechanism in place. The same should equally apply to vacation courts. I therefore, request your lordship to constitute an alternative bench at the earliest so that my client could secure the permission to file her petition and thereafter have her matter immediately heard.

6. Closing of the Court for vacation would certainly cause inconvenience. The public at large, I believe, is amused with the very concept of such long court vacations. But there is another side to it, short vacations may not be just merely justifiable, but be an absolute necessity. But that can be done causing least inconvenience to the public at large provided some thought is paid to the hardships of the litigant public and the lawyers. It is lawyers only who become judges. And all of us as lawyers are cognizant of the difficulties which the common man faces in accessing justice, but this is often forgotten post elevation. Of course we have several exceptions. What I find most painful is that the Bombay High Court remains to be the only court in India still faces avoidable difficulties. Lawyers and litigants are not admitted to the virtual court. Invariably in all situations I have to send a junior to ask the court officer to admit me even when the matter is listed. The quality of these systems is also surprisingly inadequate, there is also no online facility in the subordinate courts.

7. It is the duty of the lawyers and judges to make the system litigant friendly. There is no reason to continue the practice of obtaining prior permission from the bench before filing of a petition. Many simple reforms which will cost next to nothing  can certainly make a whole lot of difference and  am sure my instant letter will receive your lordship’s gracious consideration. I am sure your lordship will favour me with a reply in writing.

8.With the season’s greetings and most respectful regards, i remain.

Yours Sincerely,

MATHEWS J. NEDUMPARA