Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.392 OF 2019
(CNR NO.MHCC010010252019)
IN
S.C. SUIT NO. 7795 OF 2000
(HIGH COURT SUMMARY SUIT NO.495 OF 2000)
M/S.DHARIWAL BOTTLE TRADING ]
CO. A Partnership Firm registered ]
under the Indian Partnership Act ]
1932 through its Partner Esmail ]
Ebrahimbhai Dhariwala of Mumbai ]
Indian Inhabitant having place of ]
business At 12A, Arab Lane, Near ]
Taj Talkies, Mumbai 400 001. ].. Plaintiff.
V/s.
NEVITAD DISTILLERY (P) LTD., ]
A company incorporated under ]
the Companies Act, 1956 having its ]
Registered Office at Village Borivali ]
(Pata;ganga) Dist. Raigad and its ]
Administrative Office at Plot No.274 ]
Near Kalani Mahal, ]
Ulhasnagar – 421 002. ]..Defendant.
Advocate Ms.Kirti Chavan a/w Advocate Mr. Mali for Defendant.
Advocate Ms. Thakkar for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 8th OCTOBER 2021
ORDER
The Notice of Motion is taken out by original defendant for
setting aside the exparte decree passed against it in a Summary Suit No.
7795 of 2000. The Suit was decided exparte on 19/12/2015.
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2. It is the case of defendant that the writ of summons was
never served upon the defendant and it was not aware about the suit till
19/12/2018. Defendant received a notice dated 14/12/2018 issued by
advocate for plaintiff informing the defendant about passing of an ex
parte decree and judgment dated 19/12/2015. The notice was
addressed on the registered office of the defendant that is 274, near
Kalani Mahal, Khemani, Ulhasnagar, Thane, Maharashtra, India–
421002. The defendant enquired with all its offices after receiving the
notice about the suit but none of the offices was having any knowledge
about the rate of summons in the aforesaid suit.
3. It is the case of defendant that its advocate enquired about
the certified copies of the said suit with the office of this court.
However, he could not get the same immediately as the present suit was
old one and some internal renovation work of the court office was going
on and the cupboards were shifted. Learned advocate was informed on
11/01/2019 that the record was found. Accordingly, he filed a precipe
for inspection on 14/01/2019 and on taking inspection, it was found
that the summons was on 07/03/2000 the summons was served upon
at the defendant’s factory at village Borivali (Patalganaga), district
Raigad which was a factory premises.
4. Defendant has further stated that it had given the said
factory premises to one M/s. Kem Liquors and Beverages Private
Limited for managing, controlling and conducting its business and
therefore none of the employees of the defendant or directors were
present at the factory premises. Defendant has produced the agreement
dated 22/02/1996 and 19/07/1999 on record which were executed
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between the defendant and M/S Kem Liquors and Beverages Private
Limited.
5. Defendant has further stated that the acknowledgement of
the writ of summons which was sent by registered post bears the
signature of some person without any stamp. The signature is not of
any of the employees working with the defendant company at the
relevant time. It is the case of defendant that plaintiff served the writ of
summons on factory premises with malafide intention. Defendant has
further stated that the plaintiff was aware of the administrative office of
the defendant and the address of that office is also mentioned in the
plaint itself. The said address was printed on all the documents of the
defendant including letter heads and purchase orders.
6. The defendant has further stated that plaintiff did not
produce any documents such as invoices, purchase orders, Challans
receipts in respect of the goods supplied to defendant. The suit is not
maintainable as a Summary Suit. This court has no jurisdiction to
entertain the suit as the defendant carries out its business outside the
territorial jurisdiction of this court. Defendant had stated that it has
very good case on merits. For all the above reasons the defendant has
prayed for restoration of the suit.
7. Plaintiff appeared and filed his reply to the said Notice of
Motion. Plaintiff has denied all the contentions in the motion. It is
stated that there is delay of 4 years in taking out The Notice of Motion.
There is no explanation given for this delay. No sufficient cause is
shown for condonation of delay of four years. The plaintiff has
admitted that the writ of summons was served upon the defendant at its
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factory address at Borivali. It is further stated that the defendant has
not produced registration certificate of the company dated 22/09/1981.
8. Plaintiff has further stated that the agreements produced by
the defendant on record with M/S Kem Liquors and Beverages Private
Limited are afterthought created in order to defraud the legitimate
creditor that is plaintiff. They are submitted to the court with an
intention to misguide. Defendant is owner of the factory premises at
Borivali and M/s. Kem Liquors and Beverages Private Limited is
defendant’s conductor. It was necessary for the M/S Kem Liquors and
Beverages Private Limited to hand over the writ of summons to the
defendant received from this court when it was served. Plaintiff has
denied that the lady who had signed the affidavit on behalf of
defendant is director of the defendant company. Defendant has not
shown sufficient and reasonable cause for setting aside the ex parte
decree dated 19/12/2015. For all the above reasons the plaintiff has
prayed for dismissal of the Notice of Motion.
9. The defendant has filed a rejoinder and has reiterated all
the contentions in the Notice of Motion.
10. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the Summary Suit
No.7795 of 2000.
11. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
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Sr.
No
POINTS FINDINGS
1 Whether the application for setting aside the
exparte decree is filed within limitation?
In the
Affirmative
2 Whether the defendant had shown special
circumstances to set aside the exparte
decree?
In the
Affirmative
3 Whether the defendant is entitled to the
relief is claimed for?
In the
Affirmative
4 What Order? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
12. As all 4 points are related with each other, they are
discussed at once to avoid the repetition.
13. It is the case of defendant that the writ of summons was
not served upon it at all. It is pertinent to note that the suit was initially
instituted in the Hon'ble High Court bearing Summary Suit No. 495 of
2000. Later on it was transferred to this court and registered as
Summary Suit No. 7795 of 2000. The decree came to be passed on
19/12/2015.
14. I have gone through the original record and proceeding of
Summary Suit No. 7795 of 2000. It appears that plaintiff mentioned
two addresses of defendant in the plaint. The first one was that of
village Borivali where the summons was served and it is shown as
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registered address. The other address is of administrative office at
Ulhasnagar. It is not the case of plaintiff that the summons was
attempted to be served on both the addresses.
15. I have gone through the bailiff report and the
acknowledgement of post filed on record. It shows signature but it is
made in such a fashion that name of the person who made that
signature cannot be ascertained. Admittedly, the summons was
addressed to company and in ordinary course of business the employee
of the company puts the stamp of the company when any such letter is
received by registered post with acknowledgement due. The present
acknowledgement does not bear any stamp at all. In the circumstances
it is clear that the acknowledgement does not show that the writ of
summons was served upon any of the employees of the defendant
company.
16. It is the case of defendant that it entered into an agreement
with M/s. Kem Liquors and Beverages Private Limited in the year 1996
and thereafter in the year 1999. The copies of those agreements are
placed on record. It is the case of plaintiff that both these agreements
are concocted documents only to show that the defendant was not
present in the premises where the writ of summons was served. It is
also stated that thereafter thought documents. However, if we peruse
the stamp papers used for both those documents, they appear to be
purchased in the year 1996. Therefore, it cannot be said that these are
the concocted and afterthought documents.
17. The terms and conditions in the agreement show that the
premises was handed over to M/s. Kem Liquors and Beverages Private
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Limited by the defendant for conducting the business. The terms and
conditions show that M/s. Kem Liquors and Beverages Private Limited
was is in exclusive control of the premises including all day to day
affairs of the business, employees and other administrative aspects. In
the circumstances the case of plaintiff cannot be accepted that M/s.
Kem Liquors and Beverages Private Limited was bare conductor of the
business for defendant in the said premises.
18. In the above circumstances, the summons came to be
served upon the defendant on 07/03/2000 on the address at Borivali.
As per the agreement on record the said premises was in the possession
of M/S Kem Liquors and Beverages Private Limited on that day. As I
have earlier discussed, all the employees present in that premises on
that day were under the control of M/S Kem Liquors and Beverages
Private Limited. Therefore, it cannot be said that the writ of summons
was served upon any of the employees of the defendant. This service of
writ of summons cannot be treated as a proper service on the
defendant.
19. It is the case of defendant that it received a notice from
learned advocate for plaintiff dated 14/12/2018 and thereafter it came
to know about the decree passed against it in the present suit. It is
important to note that the said notice was issued prior to filing of
execution proceeding by the learned advocate. The decree which was
passed in the year 2015 was not executed by the plaintiff till the year
2018. It is also important to note that the notice was sent on the
address of defendant at Ulhasnagar which the defendant received and
responded there to.
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20. It is the case of defendant that it’s advocate enquired for
the proceedings with the office of this court on 03/01/2019 but he
could not access those documents as some internal renovation work was
going on. The office informed him about the availability of the record
on 11/01/2019. He took inspection of the documents on 14/01/2019.
The present motion is filed on 15/01/2019. It is the case of defendant
that it received the notice of the learned advocate for plaintiff on
19/12/2018. Therefore, it clearly appears that the response of
defendant was quick enough to show the bonafides . It also appears
that when defendant came to know about the decree passed against it
in the present suit, it has filed this Notice of Motion within one month
and therefore it is perfectly within limitation.
21. Order 37, Rule 4 of the Code of Civil Procedure states that,
"Power to set aside decree"
After decree the Court may, under special circumstances
set aside the decree, and if necessary, stay or set aside
execution, and may give leave to the defendant to appear
to the summons and to defend the suit, if it seems
reasonable to the Court so to do, and on such terms as
the Court thinks fit.
22. Learned advocate for plaintiff further relied upon
judgement in the case of Noor Mohmmed Rah Vs Bashir Ahmed
Wadroo in Civil Revision No. 37/2017. It is held that the application
under Order 37 Rule 4 of the civil procedure code is not compatible,
equal and is synonymous with an application under Order 9 Rule 13 of
the civil procedure code. These cannot be treated on par, but held to be
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evaluated on different scales. Special circumstances cannot be equated
with sufficient cause as provided under Order 9 Rule 13 of the Code of
Civil Procedure. Order 37 Rule 4 of the Code of Civil Procedure
provides distinctly, explicitly and in plain language that after the
decree, the court may, under special circumstances set aside the decree
as is sought by the petitioner herein this petition.
23. Learned advocate for plaintiff further relied upon
judgement in the case of Rajni Kumar Vs. Suresh Kumar Malhotra
AIR 2003 Supreme Court 1322. It is held that;
10. It is important to note here that the power under
Rule 4 of Order 37 is not confined to setting aside
the exparte decree. It extends to staying or setting
aside the execution and giving leave to appear to the
summons and to defend the suit. We may point out
that as the very purpose of Order 37 is to ensure an
expeditious hearing and disposal of the suit filed
thereunder, Rule4 empowers the Court to grant
leave to the defendant to appear to summons and
defend the suit if the Court considers it reasonable so
to do, on such terms as Court thinks fit and addition
to setting aside the decree. Where on an application,
more than one among the specified reliefs may be
granted by the Court all such reliefs must be claimed
in one application. It is not permissible to claim such
reliefs in successive petition as it would be contrary
to the letter and spirit of the provision. That is why
where an application under Rule 4 of Order 37 is
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filed to set aside a decree either because the
defendant did not appear in response to summons
and limitation expired or having appeared, did not
apply for leave to defend this suit in the prescribed
period, the Court is empowered to grant leave to
defendant to appear to the summons and defend the
suit in the same application. It is, therefore, not
enough for the defendant to show special
circumstances which prevented him from appearing
or applying for leave to defend, he has also to show
by affidavit or otherwise, facts which would entitle
him leave to defend the suit. In this respect, Rule 4
of Order 37 is different from Rule 13 of Order 9.
24. Learned advocate for plaintiff relied upon judgment in the
case of Minoo F. Mehta Vs Haresh Ratilal Vaghadia in Notice of
Motion No. 134 of 2014 in Summary Suit No. 670 of 2013. I have
gone through the said judgement. The Hon'ble Lordships have referred
the pronouncements of the Hon'ble Apex Court. The ex parte decree
can be set aside in 2 circumstances. The first one is summons was not
stored duly on the defendant and second is defendant was prevented by
sufficient cause from appearing when the suit was came for hearing.
25. In the present matter, I have come to the conclusion that
service of writ of summons on the wrong person itself is sufficient cause
for setting aside the ex parte decree. It is made out by the defendant.
therefore, defendant is entitled to get the ex parte decree set aside.
Considering the documents filed on record and the documents filed on
record of original suit, at this stage I do not find it proper to grant leave
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to defend to the defendant. Defendant is permitted to appear in the
suit. Thereafter, plaintiff may take out summons for judgment and
defendant may file reply with leave to defend thereto which shall be
decided on merits.
26. Learned advocate for plaintiff relied upon judgement in the
case of Shyam Balkrishan Chandak Vs Rampyari Chandak in the
Notice of Motion 1060 of 2012 in Suit No. 1423 of 2011. I have
gone through the said judgement. In the present matter the motion is
found to be within limitation. Hence, with all respect to above ratio, I
state that it is not applicable to the present matter.
27. Learned advocate for plaintiff further relied upon judgment
in the Notice of Motion No. 1787 of 2015 in Summary Suit No.
4160 of 2000 in the case of Qays Tayyibji Vs Akbar Humayun
Abdulali. It is held that the points regarding limitation of the suit and
jurisdiction can be decided in the summary suit at the stage of hearing
of summons for judgement and may not be considered at the time of
deciding a motion for setting aside the ex parte decree. In view of the
above observations, the objection of defendant regarding territorial
jurisdiction of this court cannot be considered at this stage. It can be
considered at the time of hearing of summons for judgement and
granting leave to defendant for defending the suit.
28. Learned advocate for plaintiff further relied upon
judgement in the case of M/s. TVC Skyshop Ltd. V. M/s. Reliance
Communication and Infrastructure Ltd. Reported in JT 2013(!3) SC
487. After referring the judgment of the Hon'ble Supreme Court in the
case of Rajni Kumar Vs. Suresh Kumar Malhotra AIR 2003 Supreme
Court 1322. The Hon'ble Lordships came to the conclusion that the
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defendant in that matter did not make out special circumstances for
setting aside the ex parte decree.
29. Learned advocate for plaintiff further relied upon
judgement in the case of M/s.Jayalakashmi Textiles Vs S.K.
Kolanadasamy in Criminal Revision Case No. 733 of 2010. I have
gone through the said judgement. The facts before Hon'ble Lordship
and the facts before this Court are entirely different. In the present
matter, the plaintiff was knowing the address of defendant where the
administrative office was located. In spite of that plaintiff preferred to
serve the notice on the factory address. Therefore, with all respect to
above ratio, I state that it is not applicable to the present matter.
30. Leaned Advocate for the defendant relied upon judgment in
the case of G.P.Shrivastava Vs R.K.Raizada and Others reported in
(2000) 3 Supreme Court Cases 54. The said judgement is under Rrder
9 Rule 13 of the code of civil procedure. In the present matter we are
dealing with the order 37 rule 4 of the code of civil procedure. Under
order 9 rule 13 the defendant has to show sufficient cause for setting
aside the ex parte decree whereas in the present case under order 37
rule 4 defendant has to show special circumstances for setting aside the
ex parte decree. The considerations for determining whether there is
sufficient cause and whether there are special circumstances are
different. Therefore, with all respect to above ratio I state that it is not
applicable to the present matter.
31. In view of all above discussion, I answer point Nos. 1to 3
in the affirmative and in answer to point No. 4, I proceed to pass
following order.
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O R D E R
1. Notice of Motion No.392 of 2019 is allowed.
2. The ex parte decree passed in Summary Suit
No. 7795 of 2000 is set aside.
3. Summary Suit No. 7795 of 2000 is restored to
the stage of service of writ of summons.
4. Plaintiff shall serve the writ of summons to
defendant on its address given in the present
Notice of Motion which is from Ulhasnagar,
District Thane.
5. The office shall inform the court before whom
the execution is pending about setting aside of the
decree by this court.
6. Both the parties are directed to bear their own
costs of this Notice of Motion.
7. Notice of Motion No.392 of 2019 stands disposed
of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 08.10.2021 Gr.Mumbai.
Dictated on : 08.10.2021
Typed on : 14.10.2021
Signed on : 20.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21.10.2021 AT 10.30 A.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
08/10/2021
Judgment/Order signed by P.O. on 20/10/2021
Judgment/Order uploaded on 21/10/2021
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