Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 39/2020
MHCC010000552020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.39/2020
CNR NO.MHCC01-0000-55-2020
IN
SUM.SUIT NO.7217 of 1997
IN
HIGH COURT SUIT NO. 2047 of 1997
Mahendra Rajkumar Sureka …...Plaintiff
V/s
Prabhat Solvent Extraction Industries Pvt. …....Applicant
(Original Defendant)
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.14)
DATE : 29th DAY OF JANUARY, 2021
Ld. Adv. B.B.Parekh for the defendant
Ld.Adv. Sualeh Nagvadaria for the plaintiff
ORAL ORDER
This notice of motion is taken out by the original
defendant for condoning the delay, setting aside exparte decree dtd.
29th April, 2015 in Suit No. 7217 of 1997 and for staying of the
execution proceedings. This notice of motion is supported by an
affidavit being executed by Shri Mahesh Vadalia who is the Director
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of defendant company Prabhat Solventdf Extraction Industries
Pvt.Ltd.
2. While opposing the notice of motion the plaintiff has
filed the reply on affidavit being executed by the plaintiff namely
Shri Mahendra Rajkumar Sureka. I have heard learned counsel Shri
B.B. Parekh for the applicant/original defendant and learned counsel
Shri Sualeh Nagvadaria for the non applicant /original plaintiff.
3. At the very outset of the present case from the record it is
clear that my learned predecessor vide its Judgment dtd. 29/4/2015
has passed a decree against the defendant and the operative part of
the judgment reads as follows:-
“ 1. Suit is decreed with cost
2. The defendant shall do pay sum of Rs.30,03,500/- to
the plaintiff within 30 days from the date of this order.
3. The defendant shall also do pay interest @ 9% p.a. on
the sum of Rs.21 lakh to the plaintiff from the date of
filing suit till realisation of entire amount.
4. Decree be drawn accordingly .”
In pursuant to the said order the decree was drawn and
the decree was transferred for execution to Rajkot Court. The
execution proceedings were filed before the Rajkot Court and the 6th
Additional Civil Judge dtd. 30.09.2019 in Special Execution
application no. 28/19 had issued notice to the present
applicants/(Original defendants/Judgment debtor). Upon receipt of
the execution notice, the defendant has tried to contact the advocate
on record who was Mr. J.R. Kotharee but could not succeed in
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contacting him inspite of fervent efforts. Thereafter the defendants
came to know that Advocate Mr. J.R. Kotharee is no longer alive and
nobody could provide any further information or his residential
address compelling the defendants to engage another advocate who
has then applied for Certified copy of decree on 11/10/2019 and
received the copy of decree on 24/10/2019.
3. On behalf of the applicant/original defendant it is
submitted that there was no communication of any kind whatsoever
from the erstwhile Advocate J.R.Kotharee and due to the fault of
advocate as he remained absent resulting in suit remaining
uncontested and defendants became the innocent victim. As such it
is contended on behalf of the applicant that they became aware of the
exparte decree and had knowledge of the said only on 30/09/2019
when the Rajkot court has served the execution notice. According to
the applicant, there is delay of 50 days and therefore the present
notice of motion is preferred for setting aside the exparte decree and
stay of execution proceedings.
4. In reply the plaintiff has strongly opposed the notice of
motion. It is submitted that as the notice of motion is in relation to a
summary suit the defendants are bound to show special
circumstances for not prosecuting their case as laid down under
Order 37 Rule 4 of the CPC and just sufficient cause will not suffice to
set aside the exparte decree. It is also submitted that there is delay of
about four and half years and this is inordinate delay which is not
been properly explained and therefore notice of motion may be
rejected.
5. I have given my anxious consideration to the argument
advanced at bar and I have also carefully gone through the rulings
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relied on by both the sides. It is pertinent to note here that the
Original Summary suit no. 7217 of 1997 was filed before the High
Court having summary suit no. 2047 of 1997. It was after change of
pecuniary jurisdiction i.e. in the year 2012 this matter was transferred
from Hon’ble High Court to this Court. Regarding this transfer, the
learned advocate for the plaintiff has submitted that a copy of notice
is there on record. However, upon the perusal of the record there is
nothing to indicate that a notice was duly served. Be that, as it may,
when the advocate on record i.e. Advocate Shri J. R. Kotharee is
dead, even after service is made on the advocate, in my opinion i.e. is
not a proper service when he was already dead. In my considered
opinion in Civil Suit the personal appearance of the parties are not
required and after engaging the lawyer generally the lawyers looks
into the brief. In the present case the defendant after receipt of the
writ of summons has appeared through lawyer Kotharee and has also
filed the written statement. The issues were framed. The plaintiff
has filed the evidence and thereafter the case was transferred from
Hon’ble High Court to this Court. So this is not a case wherein after
service of writ of summons the defendant have not appeared but
infact the defendant has filed the written statement, filing of written
statement in my opinion shows that the defendants were ready to
contest the suit. The judgment in the summary suit also shows that
issues were framed and the judgment reflects that all the issues were
answered. In the judgment the defendant case has also being
considered as per issue no.3 as the onus to prove the same was on the
defendant which was answered in negative. In para no.15 of the
judgment it was mentioned that the defendant has produced the
documents. Para no.18 of the judgment shows that the evidence on
record remained unchallenged.
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6. Both the parties have also argued regarding the
maintainability of the notice of motion. I have carefully gone through
the provisions of Order 9 Rule 13 of the CPC . From the rulings as
well as the detailed commentary placed on record, it is clear that the
present notice of motion is maintainable and the defendant has opted
for the remedy of setting aside exparte decree by filing it under the
provisions of Order 9 Rule 13 of the CPC, before this court.
7. According to the plaintiff, the condonation of delay is to
be calculated from the date of knowledge of decree and therefore he
has calculated fifty days of delay. Be that, at it may, so far as the
sufficient cause in my opinion is to be shown on the date when the
suit was called on for hearing. If a party to a suit is unaware of the
date of hearing and the unawareness is not due to any fault of his and
he had taken all the precautions necessary in this respect for being
made aware of the date of hearing of suit then “being unaware”
would be sufficient cause. The sufficient cause for non appearance
has to be proved on the date of hearing alone and not anterior and
posterior to the said date. According to the applicant they have
engaged the lawyer and has filed the written statement. Thereafter
the matter was subjudice before the Hon’ble High Court and there
was no communication between them and the advocate on record
for the long time. When they have received the execution
proceedings notice they tried to contact lawyer and they became
aware that lawyer has expired. According to the applicant, this was
the sufficient cause for their non appearance on the date, when the
suit was called for hearing. In my opinion, when the lawyer on record
itself has expired and after the transfer of the suit from High Court to
this Court, the notice infact should have been personally served upon
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the defendant, which was not done and hence in my opinion, the
defendants were prevented for appearing before this Court. When
the suit is transferred from the Hon’ble High Court to this Court and
the exparte decree is passed that too without giving any information
of transfer to the applicant, this is a sufficient cause shown by the
applicant for setting aside exparte decree. In my opinion, it would
not be proper that the applicant / original defendant may suffer
inspite of fact that initially they have fully participated by filing
written statement and has entrusted this case to the advocate. For
whatever reasons and in this case when the advocate is dead the
defendant cannot be allowed to suffer injustice for the absence of
their advocate.
8. So far as the period of delay even if the argument of
defendant is concerned i.e. to about four and half years is concerned,
in my opinion, when there was not communication between the
defendant and his advocate and as the advocate was expired, for fair
trial and proper opportunity one chance needs to be given to the
defendant to contest the suit on merit.
9. While opposing the notice of motion the learned
advocate for the plaintiff has placed reliance on the case Salil Dutta
Vs. T.M. And M. C. Private Ltd. (1993) 2 Supreme Court Cases 185 ;
wherein it was held by Hon’ble Apex Court that- “ Or.9 R. 13- Setting
aside ex parte decree against defendant – Sufficient cause of non-
appearance by defendant,- Improper advice of advocate – Cannot as a
rule be accepted as a sufficient cause – It would depend on particular
facts and circumstances of the case – Suit posted for final hearing
seven years after its institution – Non-appearance of defendant on the
date of final hearing alleged to be on account of advice of advocate –
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Defendant a private limited company having its registered office in
the same city and being managed by educated businessmen –
Defendant’s conduct found to be non- cooperative with the Court –
Held on facts, defendant’s application under R.13 not sustainable
Legal profession – Advocate acts as an agent of the party and his acts
cannot be ordinarily disowned – Contract Act, 1872, Ss.182,188”. In
this case Hon’ble Supreme Court has distinguished the case of Rafiq
V/s Munshilal (1981) 2 SCC 788.
10. Learned advocate for the plaintiff vehemently argued
before me that since the judgment under appeal is exclusively based
upon the decision of Supreme Court in
Rafiq, it is necessary to
ascertain what precisely does the said decision say. The appellant,
Rafiq had preferred a second appeal in the Allahabad High Court
through an advocate. His advocate was not present when the second
appeal was taken up for hearing with the result it was dismissed for
default. In my opinion, Rafiq case is squarely applicable to the
present case.
11. It is pertinent to note, the advocate is the agent of the
party. His acts and statements made within the limits of authority
given to him, are the acts and statements of the principal i.e. the
party who engaged him. The observations made in Rafiq’s case must
be understood in the facts and circumstances of that case and cannot
be understood as an absolute proposition. As noted above, this was
an on-going suit and transferred to this Court from High Court at the
stage of recording of cross examination of plaintiffs witness. The
defendant company is based at Rajkot . During the pendency of the
suit the lawyer has expired and hence Rafiq’s case cited supra is
applicable to present case where in it was held that “ It is not proper
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that an innocent litigant, after doing everything in his power to
effectively participate in his proceedings by entrusting his case to the
Advocate, should be made to suffer for the inaction, deliberate
omission or misdemeanour of his agent. For whatever reasons the
advocate might have absented himself from the Court, the innocent
litigant could not be allowed to suffer injustice for the fault of his
Advocate.”
It was further held that “ the disturbing feature of the
case is that under our present adversary legal system where the
parties generally appear through their advocates, the obligation of the
parties is to select his advocate, brief him, pay the fees demanded by
him and then trust the learned advocate to do the rest of the things.
The party may be a villager or may belong to a rural area and may
have no knowledge of the court’s procedure. After engaging a lawyer,
the party may remain supremely confident that the lawyer will look
after his interest. At the time of the hearing of the appeal, the
personal appearance of the party is not only not required but hardly
useful. Therefore, the party having done everything in his power to
effectively participate in the proceedings can rest assured that he has
neither to go to the High Court to inquire as to what is happening in
the High Court with regard to his appeal nor is he to act as a
watchdog of the advocate that the latter appears in the matter when
it is listed. It is not part of his job, Mr. A.K. Sanghi stated that a
practice has grown up in the High Court of Allahabad amongst the
lawyers that they remain absent when they do not like a particular
Bench. May be he is better informed on this matter. Ignorance in this
behalf is our bliss. Een if we do not put our seal of imprimatur on the
alleged practice by dismissing this matter which may discourage such
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a tendency, would it not bring justice delivery system into disrepute.
What is the fault of the party who having done everything in his
power and expected of him would suffer because of the default of his
advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do,
the only one who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer for
the inaction, deliberate omission, or misdemeanour of his agent. The
answer obviously is in the negative. May be that the learned
advocate absented himself deliberately or intentionally. We have no
material for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be a party to
an innocent party suffering injustice merely because his chosen
advocate defaulted. Therefore, we allow this appeal, set aside the
order of the High Court both dismissing the appeal and refusing to
recall that order. We direct that the appeal be restored to its original
number in the High Court and be disposed of according to law. If
there is a stay of dispossession it will continue till the disposal of the
matter by the High Court. There remains the question as to who shall
pay the costs of the respondent here. As we feel the party is not
responsible because he has done whatever was possible and was in
his power to do, the costs amounting to Rs.200/- should be recovered
from the advocate who absented himself. The right to execute that
order is reserved with the party represented by Mr. A . K. Sanghi.”
I have carefully gone through both the aforesaid rulings
in the rulings of Rafiq the Hon’ble Supreme Court has held that only
because the advocate is absent and for that purpose the litigant could
not be allow to suffer injustice. In the ruling of Salil Dutta, the case
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of Rafiq was distinguished and the Hon’ble Supreme Court has held
observation made in Rafiq must be understood in the fact and
circumstances in that case and cannot be understood as an absolute
proposition. So in the present case when advocate for defendant is
already dead and after transfer of suit even if notice was served upon
him it would not possible to know about transfer as well as it was of
the advocate to the defendants. Hence by no stretch of imagination it
could be said that the defendants did not cooperated to the Court
and were not deliberately not attending the Court. Therefore in my
opinion Rafiq case is squarely applicable to the present case.
12. The plaintiff has further placed reliance on the case
Dwarka Cement Works Ltd. Vs Rajnesh Jain 2001 (3) Mh.L.J.];
wherein it was held by the Hon’ble Bombay High Court that
“ Ex
parte decree in summary suit – In the matter of application to set
aside ex parte decree defendant must show that special circumstances
exist to set aside the decree.”
In para no.11 of the said ruling it was also held “ The
learned counsel for the defendant further submits that when the
parties are fighting each other on the merits of the case, at least an
opportunity be given to the defendant to defend the case. In this
context he cited a decision of the Supreme Court reported in Rafiq
and another vs. Munshilal and another reported in AIR 1981 SC page
1400. The learned counsel for the plaintiff Mr.Madon in reply has
cited decision of Supreme Court reported in J.T. 1993 (4) SC 528,
Salil Dutta Vs. T. M. and M.C. Private Ltd., and submits that the
1981 decision has been distinguished. In 1981 decision it is said that
a party cannot be suffered for the negligent of his lawyer. Therefore
this application can be allowed on payment of cost, which can be
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realized. On the other hand in 1993 J.T. (4) SC 528, it is held by the
Supreme Court that this is not a general rule and that is only an
exception . It has been held by the Supreme Court that where a client
must be always diligent in prosecuting the case and he cannot solely
rely upon his counsel in prosecuting the case. Principles laid down in
the above case (supra), in para 8, in fact does directly apply in this
case.”
It is true that in certain situations, the Court may in the
interest of justice, set aside a dismissal order or an ex-parte decree
notwithstanding the negligence and /or misdemeanor of the advocate
where it finds that the client was an innocent litigant but there is no
such absolute rule that a party can disown its advocate at any time
and seek relief, No such absolute immunity can be recognised.
“ Here I have to see that I am dealing with a Summary
suit. Treatment of ordinary suits and summary suits by Code of Civil
Procedure is entirely different. This difference has to be kept in
mind, in dealing with setting aside the ex-parte decree also”.
“ The aforesaid judgments clearly lay down as to how
differently the Court must treat the ordinary suit and summary suit in
setting aside ex-parte decree. Accordingly a defendant in summary
suit is bound to show special circumstances for his non prosecuting
his case as laid down under Rule 4, Order XXXVII of the Civil
Procedure Code whereas the defendant in the ordinary suit need only
to show “sufficient cause” in Order 13 Rule 9, Civil Procedure Code.
This distinction does emphasis the need of the decree of proceedings
before this Court under ordinary suit and summary suit. These
decisions in fact lays down the guidelines as to how the Court’s
discretionary power could be exercised in the two different nature of
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the suits.” In the present case, the defendant needs to explain four
and half years of delay.
13. From the aforesaid rulings it is clear that the treatment of
ordinary suit and summary suit by CPC is entire different. This
difference has to be kept in mind in dealing with setting aside the
exparte decree. The defendant in summary suit is bound to show
specific circumstances for his non prosecuting his case as laid down
Rule 4 of Order 37 of the CPC whereas defendants in the ordinary
course in proceeding under Order 9 Rule 13 of the CPC. In the
present case the defendants have not explained each day delay so it is
to be appreciated that the only specific reasons shown by the
defendant is regarding the death of the advocate on record. The
defendant has not explained as to why for such a long period he has
not contacted his lawyer or has not taken care of the suit. The
aforesaid rulings clearly laid down as to how differently Court must
be treated in the ordinary suit and summary suit in setting aside the
exparte decree. No clear explanation regarding delay has been there.
In my opinion even if the exparte decree has to be set aside then it
should be with stringent conditions.
14. The plaintiff has also placed reliance on the case
Basawaraj And Another Vs. Special Land Acquisition Officer Reported
in (2013) 14 Supreme Court Cases 81 wherein it was held that –
“Condonation of delay- Approach of courts while condoinig delay –
Held, discretion of condone delay has to be exercised judiciously
based on facts and circumstances of each case - ‘Sufficient cause’
cannot be liberally interpreted if negligence, inaction or lack of
bonafides is attributed to the party – Even though limitation may
harshly affect rights of a party but it has to be applied with all its
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rigour when prescribed by statute – Courts have no choice but to give
effect to the same- Result flowing from statutory provision is never an
evil – Inconvenience not ground for interpreting a statute – Courts do
not have power to extend period of limitation based on equitable
grounds – If courts start substituting period of limitation then it
would amount to legislation, which is impermissible – If party acted
with negligence, lack of bonafides or inaction then there cannot be
any justified ground for condoning the delay – There is no
justification in condoning delay by imposing conditions – Each
application for condonation of delay has to be decided within the
framework laid down by Supreme Court – If courts start condoning
delay where no sufficient cause was made out by imposing conditions
then that would amount to violation of statutory principles and
showing utter disregard to legislature – Doctrines and Maxims – Dura
lex and lex- Limitation Act, 1963 – S. 5 – Condonation of delay –
Sufficient cause- Equity – Delay cannot be condoned on equitable
grounds, beyond the extent permitted expressly by statute.”
It was further held in the ruling cited supra that
“Condonation of delay – Sufficient cause- Meaning of -Distinction
between sufficient cause and good cause – Held, sufficient cause
means a cause for which a party could not be blamed for his absence
– A party should not have acted with negligence or lack of bona fides
– Degree of proof is less in case of good cause whereas it is higher in
case of sufficient cause – Words and Phrases - “Sufficient” -Meaning
of – Held, it means adequate or enough so as to answer the purpose
intended .”
“ Limitation Act, 1963 – Generally – Object of – Held, it is
founded on public policy with aim of securing peace, to suppress
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fraud and perjury, to quicken diligence and to prevent oppression – It
seeks to bury all acts of the past which have not been agitated
unexplainably and have become stale due to lapse of time.”
15. I have carefully gone through the aforesaid rulings. In
the present case four and half years of delay has not been properly
explained by the defendants. In the given circumstances, only death
of advocate cannot be a sufficient cause when the defendants for a
long period has not contacted the lawyer and as stated by the
advocate for the plaintiff that when the suit was before Hon’ble High
Court then the copy of evidence and documents were personally
served upon the defendants as the said advocate on record has
stopped practicing. Thus the defendant in my opinion remained
inactive and were not diligent about their case and have taken it
casually for long period of four and half year and even if the delay
has to be condoned then it should subject to certain heavy costs
relying upon aforesaid ruling.
16. In the present case the advocate for plaintiff has
alternatively argued if the notice of motion is allowed then it should
be with condition of depositing the decretal amount alongwith costs.
While the arguing on these aspects he has placed reliance on the case
V. K. Industries And Others Vs. M.P. Electricity Board, Rampur (2202)
3 Supreme Court Cases 159; wherein it was held by Hon’ble
Supreme Court ordinarily, a money decree is not stayed
unconditionally and the judgment debtor would be put on terms.
Even so, such conditions must be reasonable having regard to all
relevant factors. Although ex parte decree was passed against the
appellants, once it is set aside on the ground of non service of suit
summons the money decree did not exist for execution. It is no doubt
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true that in restoring a case the court may impose conditions to
deposit costs or the decretal amount or some portion thereof or to ask
the defendant to give security but such conditions should be
reasonable and not harshly excessive. In the impugned order the
appellants are put on terms to deposit a sum of Rs.2,00,000 and to
furnish a bank guarantee for the remaining suit claim within a period
of two months. In our view these terms are onerous, harsh and
unreasonable in the facts and circumstances of the case and that too
even before the trial of the suit on merits.” From the aforesaid ruling,
it is well settled law that a money decree cannot be stayed
unconditionally. In the present case it is a money decree and
therefore condition has to be putforth for restoring the case,
condoning the delay, setting aside the exparte decree and staying the
execution proceedings. In my opinion, defendants is required to
deposit the costs, ascertained portion of decretal amount and also to
give security. If the judgment is looked into then total decretal
amount is around of Rs.30,00,000/- (Rupees Thirty lakhs). There is
delay about four and half years. From the aforesaid ruling, it is also
cleared that the conditions should be reasonable and not harshly , not
to be excessive. Hence considering overall facts and circumstances of
this case, in my opinion, the notice of motion can conditionally be
allowed in the interest of justice. Therefore, I pass the following
order.
ORDER
1. Notice of Motion no. 39/2020 is allowed and made
absolute in terms of prayer clause (a) to (d) subject to
compliance of following terms and conditions.
(i) The applicant/original defendants shall pay to the
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plaintiff the costs of Rs.25,000/-(Rupees Twenty five
thousand )within one month from today.
(ii) The applicant/ original defendants shall deposit in Court
a sum of Rs.10,00,000/-(Rupees Ten lakhs) within three
months from today.
2. Notice of motion is disposed of accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.29.01.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on : 22.01.2021
Transcribed on : 25, 27,28 & 29.01.2021
Signed on : 29.01.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 29.01.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: pm
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.14)
Date of Pronouncement of JUDGEMENT/ORDER 29.01.2021
JUDGMENT/ORDER signed by P.O. on 29.01.2021
JUDGEMENT/ORDER uploaded on 29.01.2021
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