Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion
No. 401 of 2019. 1
MHCC010010432019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 401 OF 2019.
IN
SHORT CAUSE SUIT No.9998 of 1987.
(High Court Suit No.2296 of 1987)
2.Tata Tea Ltd. ….Defendant No.2/
Applicant.
In the matter of
The Board of Trustee of the Port
of Bombay … Plaintiff.
V/s.
1. Dr. Jenny Arun and Ors. ...Defendants
Appearance:
Adv. Sidhi More i/b M/s. M.V. Kini & Co. for Plaintiff.
Adv. K.K. Mohite i/b Adv Anant Kumar for defendant No.2.
CORAM : SHRI. S. B. PAWAR
Judge (C.R.No.59)
DATE : 07th February, 2023
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Order in Notice of Motion
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ORDER
Defendant No.2 has taken out the present Notice of Motion
with a prayer to set aside the exparte judgement and decree dated
08.01.2014 in Suit No.9998 of 1987.
2. Mr Tapan Pawaskar, Manager (Administration), Tata
Global Beverages Ltd. filed an affidavit in support of the Notice of
Motion. Therein it is contended that writ of summons of the suit were
never served upon defendants and defendant No. 2 had no notice or
information of the present proceedings. Therefore, it could not appear
and contest the proceedings. The plaintiff obtained exparte decree at
the back of defendant No.2. After presenting the plaint in August 1987,
plaintiff did not take any steps to serve the defendants. The summons is
issued in the year 2007. There is nothing on record to evidence that the
writ of summons was effected through process server or transmitting
the same through registered A. D.
3. It is further contended that the address of defendant No.2
in the cause title of the plaint is incorrect. The plaintiff and its Counsel
did not make any effort to find out the alternative address or the
registered address of defendant No.2. The substituted service under the
provisions of Order 5 Rule 20 of the Code of Civil Procedure (in short
CPC) cannot be relied upon to show that defendant No.2 had been
served. Defendant No.2 had no notice of the proceedings till 12.12.2018
till it received a summons from the Registrar of the City Civil Court,
Mumbai. Even no notice was issued to defendant No.2 in 2012 after
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Order in Notice of Motion
No. 401 of 2019. 3
transfer of the suit to the City Civil Court, Mumbai. The plaintiff did not
file any document fastening the liability upon defendant No.2 to
establish that defendant No. 2 was the agent of the vessel S S Muscat
Bay. The defendant No.2 was falsely impleaded and had no obligation
or liability to clear the Port Trust charges. On these grounds, it is prayed
that the exparte decree dated 08.01.2014 passed against defendant
No.2 be set aside.
4. Mr Ajit Bhaskar Zarkar, Senior Asst. Traffic Manager of the
plaintiff filed an affidavit in the reply and contested the Notice of
Motion. It is averred that the plaintiffs filed suit for recovery of sum of
Rs.6,87,000/ against defendant Nos.1 and 2 with interest at the rate of
15% p.a. The writ of summons was served upon defendants. In spite of
service of writ of summons, neither of the defendants appeared in the
suit. Therefore, suit proceeded exparte and decree dated 08.01.2014
came to be passed by the Court. In another suit bearing HC Suit No.
3675 of 1987, writ of summons was served upon the defendant No.2 on
the same address and the defendant had caused their appearance.
5. It is further averred that the address of defendant No.2 was
informed by Trident Shipping Agencies Private Ltd. vide letter dated
28.03.1987. The address of defendant No.2 was correct as per the
record of the plaintiff. The new address of defendant No.2 came to the
knowledge of the plaintiff from the records of the above suit. He denied
the allegations made in the supporting affidavit and contended that the
Notice of Motion is taken out after five years of the decree and
therefore, it is barred by limitation. The plaintiff was not aware about
the present whereabouts of the defendant No.2. The service upon
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No. 401 of 2019. 4
defendant No.2 was completed by way of substituted service by paper
publication in two newspapers and affidavit of substitute service was
filed to that effect. The record of Suit No. 110264 of 1987 shows that
the address of defendant No.2 was changed subsequently and the
plaintiff was not aware of the said address. By contending that the
service is proper, plaintiff prayed that the Notice of Motion be rejected.
6. Perused the Notice of Motion, supporting affidavit, affidavit
in reply and rejoinder affidavit to the reply filed by the plaintiff. Heard
learned advocates appearing for both the sides. Read written
submissions filed by both the sides.
7. Ld. advocate for defendant No.2 vehemently submitted that
the service upon defendant No.2 was not complete. The suit was filed in
the year 1987 but the steps were not taken till the year 2007. The writ
of summons was issued upon incorrect address of defendant No.2. In
spite of earlier report that defendant No.2 had left the address, plaintiff
obtained the order of substitute service. Defendant No.2 is a registered
company and its products are easily available in the market from which
registered address of the defendant No.2 could easily ascertained.
Therefore, the affidavit filed on behalf of the plaintiff for obtaining
substitute service of summons that plaintiff is not aware of the address
of defendant No.2 was not correct. Defendant No.2 had no knowledge
of this proceeding until the receipt of notice of the execution
proceeding. Even transfer notice was not served upon the defendant
No.2 after transfer of the suit to City Civil Court, Mumbai. Therefore, as
per his submissions, the exparte decree requires to be set aside. He
relied upon following judgments in support of his submissions
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1) M/s. Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) through LRs.,
Civil Appeal No.71 of 2018 (The Hon’ble Supreme Court)
2) Dr. Madhav Vishwanath Dawalbhakta (Dead) through LRs.
Dr. Nitin M. Dawalbhakta and ors. V/s. Bendale Brothers, Writ
Petition No.4217 of 2018 (The Hon’ble Bombay High Court)
8. On the other hand, Ld. advocate for the plaintiff submitted
that there was no irregularity in the service of writ of summons upon
defendant No.2. The address of defendant No.2 was disclosed in a letter
dated 15.04.1987 and it was the office address and also the last known
address of defendant No.2. Initially attempt was made to serve the writ
of summons upon defendant No.2 by RPAD but it could not be served.
Plaintiff was aware only of the last known address therefore the writ of
summons was served upon defendant No.2 by way of substituted
service. The provision in Order 5 Rule 20 of CPC is duly complied with.
The office of defendant No.2 is in Mumbai and the writ of summons
was published in the newspapers in Mumbai. Therefore defendant No.2
had knowledge of the pendency of the suit. The service is proper and
therefore there is no ground to set aside the exparte decree. Ld.
advocate for the plaintiff relies upon the authority in Sunil Poddar and
Ors. Vs. Union Bank of India, (2008) 2 SCC 326.
9. Having heard both the parties at sufficient length, I have
perused the record of the suit and the documents produced by both the
parties. It reveals that initially the suit was filed before the Hon’ble High
Court in the year 1987. It further reveals that no steps were taken in the
matter till the year 2007. In the year 2007, for the first time, writ of
summons came to be issued against defendants. The writ of summons
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that was issued to defendant No. 2 by RPAD returned with the remark
‘left’. Thereafter an affidavit was filed before the Hon’ble Prothonotary
and Senior Master, High Court whereupon order for substitute service
under Order 5 Rule 20 of CPC came to be passed. The service affidavit
thereupon indicates that the copy of summons was affixed in the Court
premises and was published in the newspapers. Thereafter in the year
2012, due to enhancement of pecuniary jurisdiction of this Court, the
suit came to be transferred to this Court. After the transfer of the suit,
the Court, noting that the writ of summons was already served upon
defendants, proceeded to pass exparte order in the year 2013.
Ultimately the suit came to be decreed by passing exparte judgement
dated 08.01.2014 on the basis of evidence adduced by the plaintiff.
10. It is the contention of defendant No.2 that the address of
defendant No.2 mentioned in the cause title of the plaint was incorrect
and no attempt was made by the plaintiff to find out the correct address
or the registered address of defendant No.2. Record of the suit supports
the above contention of defendant No.2. At the outset, after filing of the
suit for a period of about 20 years, no steps were taken by the plaintiff
to issue a writ of summons upon defendants. Furthermore, when the
rate of summons issued by R.P.A.D. had returned with the remark ‘left’,
plaintiff simply filed affidavit that it was the last known address of
defendant No.2 and requested for a substitute service under Order 5
Rule 20 of CPC.
11. The plaintiff relies upon the letter of the year 1987 wherein
the address of defendant No.2 was mentioned. The writ of summons
was issued initially on the same address which was mentioned in the
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cuase title of the plaint as well. But the writ of summons having
returned with the remark left, it was obligatory on the part of the
plaintiff to trace out the correct address of defendant No.2. It may be
noted that defendant No.2 is a wellknown company. The registered
address of defendant No.2 was also available in the letters relied upon
by the plaintiff. Being a registered company, registered address could
have been easily ascertained. But in fact, no attempt seems to have been
made by the plaintiff to trace out the correct address and to serve the
writ of summons upon the correct address of defendant No.2.
12. The plaintiff has mentioned the correct address in the
execution petition. On the said address the notice is served upon
defendant No.2 and thereafter defendant No.2 has taken out the
present Notice of Motion. It is contended on behalf of the plaintiff that
the said address came to the knowledge of the plaintiff in another suit
in which the address was changed on the intimation given by defendant
No.2. Be that as it may, but it is apparent that the address upon which
plaintiff made an attempt to serve the writ of summons issued against
defendant No.2 was not correct.
13. In M/s. Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead)
through LRs (supra), the Hon’ble Supreme Court dealt with service
under Order 5 Rule 17 and 20. It is observed that substituted service is
an exception to the normal mode of service and the Court must apply its
mind to the requirements of Order 5 Rule 20 of CPC. In the case in
hand, it is apparent that while obtaining order for substituted service
against defendant No.2, plaintiff failed to ascertain the correct address
or to attempt service of writ of summons upon the registered address of
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No. 401 of 2019. 8
defendant No.2. furthermore, nothing has been brought on record to
show that defendant No.2 had knowledge of the fact that the suit was
pending against it.
14. In Dr. Madhav Vishwanath Dawalbhakta (Dead)
through LRs. Dr. Nitin M. Dawalbhakta and ors Vs. Bendale
Brothers. (Supra), the Hon’ble Bombay High Court held as under
22. Under Order 9 Rule 13, the Court is to be satisfied that the
summons was not duly served means there is no proper legal service.
In ordinary course, the service contemplated under Order 5 Rule 17
and under Order 5 Rule 20 if is complied with, then summons is to be
said duly served. However, under some circumstances, though the
procedure laid down by law is followed; and yet the defendant if
successfully points out that he could not have the knowledge of filing
of proceedings by the plaintiff because of certain factual impossibilities,
then the Court has to give correct meaning to the word "duly". Under
Order IX Rule 13, "Due service" is not always substituted service, but
service which has been effective in bringing the claim to the knowledge
of defendant. The Judicial Dictionary, 12th Edition explains that the
word "duly" is very significant and excludes any arbitrary exercise of
power.
15. In the above authority, further in para 23, the Hon’ble High
Court observed thus
23. The service is neither an empty formality nor procedural ritual but
the soul of the service is to have the knowledge of the proceedings to
the defendant or the contesting party. Therefore, there may be a
service laid down as per the procedure, however, still there is no
communication of the proceedings to the other party and, therefore,
the knowledge is absent. Thus, satisfaction based on instances of the
compliance of the proceedings as a mere formality cannot be a correct
approach to interpret the principle behind the service. The deeming
fiction is created in law to fill up the gap where the procedural law falls
short. By accepting that the substituted service is deemed to be a good
service, then passing exparte decree is a correct legal step taken by the
Court as per the procedure. However, the moment the defendant
acquires the knowledge of the proceedings and he approaches the
Court and the fact is brought before the Court that he really never had
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Order in Notice of Motion
No. 401 of 2019. 9
actual real knowledge, then even though there is a procedural
compliance by the plaintiff, the Court has to take realistic and just view
and not to limit itself in the procedural wrangles.
16. In Sunil Poddar and Ors. Vs. Union Bank of India
(Supra) relied upon by Ld. advocate for the plaintiff, the Hon’ble
Supreme Court held as under
It is, therefore, clear that the legal position under the amended Code is
not whether the defendant was actually served with the summons in
accordance with the procedure laid down and in the manner prescribed
in Order V of the Code, but whether (i) he had notice of the date of
hearing of the suit; and (ii) whether he had sufficient time to appear
and answer the claim of the plaintiff. Once these two conditions are
satisfied, an exparte decree cannot be set aside even if it is established
that there was irregularity in service of summons. If the Court is
convinced that the defendant had otherwise knowledge of the
proceedings and he could have appeared and answered the plaintiffs
claim, he cannot put forward a ground of non service of summons for
setting aside exparte decree passed against him by invoking Rule 13 of
Order IX of the Code
17. In the case at hand, there is nothing on record to draw
inference that defendant No.2 had actual knowledge of the proceedings
and he could have appeared and answered the plaintiffs claim. The
conditions in the above ratio are not satisfied. The ratio in the judgment
in Dr. Madhav Vishwanath Dawalbhakta (Dead) through LRs. Dr.
Nitin M. Dawalbhakta and ors Vs. Bendale Brothers, squarely applies
to the present case.
18. It may further be observed that the suit was transferred
from the Hon’ble High Court to this court in the year 2012. No attempt
was made to issue and serve the notice of transfer upon the defendants.
The exparte order came to be directly passed on the basis of service
affidavit of the year 2007. In these circumstances, defendant No.2 has
made out a valid ground under Order 9 Rule 13 of CPC to set aside the
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Order in Notice of Motion
No. 401 of 2019. 10
exparte decree dated 14.01.2014.
19. The plaintiff has claimed joint and several liability of
defendants to pay its charges. The claim is not divisible therefore the
decree cannot be set aside only against defendant No.2. The decree
requires to be set aside in entirety. Therefore, I pass following order:
ORDER
1. Notice of Motion No.401 of 2019 is made absolute in terms of
prayer clause (a).
2. Notice of Motion No.401 of 2019 is disposed of accordingly.
(S.B. Pawar)
Judge,
Dated : 07.02.2023 City Civil and Sessions Court,
Greater Bombay (CR 59).
Declared on : 07.02.2023
Direct Dictated on : 07.02.2023.
Checked on : 09.02.2023
Signed on :16.02.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.02.2023 at 2.00 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 07.02.2023
Order signed by P.O. on 16.02.2023
order uploaded on 16.02.2023
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