Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 393/18 in Suit No. 3109/11. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 393 OF 2018
(CNR NO. MHCC010015572018)
IN
SUIT NO. 3109 OF 2011
(CNR NO. MHCC010054032010)
(HIGH COURT SUIT NO. 179 OF 2011)
AND
EXECUTION APPLICATION NO. 61 OF 2017
M/s. Smith International ...Plaintiffs
Versus
Shree Ganesh Forgings Limited ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 23rd JULY, 2019.
Mr. Krishna Patil, Advocate for Plaintiffs.
Mr. Dalal, Advocate for Defendants.
ORAL ORDER
This is a motion taken out by applicant / original defendant
to set aside decree (exparte) issued by this Court in view of the
judgment dated 01/07/2015. Perused reply filed by respondent /
original plaintiff.
2. According to defendant in Suit No. 3109/2011, pending
before the Original Side of the Hon'ble High Court, defendant has
engaged Advocate Abhinandan Vagyani. Accordingly he filed V/P and
appeared in the proceeding. However, he failed to file written
statement. During 2011 to 2013 defendant was declared as 'NPA' by
-- 1 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 2 Order.
various banks. He was facing litigation before DRT and Labour Court.
As he was facing litigation, he lost the sight from present suit. In view
of various debit entries as mentioned in Table 1, the amount of
Rs.7,30,435/ (Rupees Seven Lakhs Thirty Thousand Four Hundred
Thirtyfive Only) are due towards plaintiff. There is necessity to
reconcile the account. Therefore, it is claimed to set aside decree issued
by this Court in view of judgment dated 01/07/2015.
3. Ld. Advocate Dalal for defendant submits that due to
recession in market and defendant was declared as NPA, he was facing
litigation filed by bank and labour unions. Defendant was dependent as
he engaged a lawyer. However it was the fault of advocate Vagyani
who failed to file written statement. It is requested to note in view of
various debit entires are not properly marked in account extract
maintained by plaintiff. Upon reconciliation of account defendant has
assured to show that Rs.7,00,000/ are to be recovered from plaintiff.
4. Ld. Advocate Dalal relied on various caselaws wherein it is
held that the client shall not suffer for the fault of a lawyer. It is
requested to set aside decree and permission be granted to the
defendant to contest the suit on merit.
5. Ld. Advocate Krishna Patil for respondent/original plaintiff
submits that present motion under Order 9 Rule 13 of CPC is hopelessly
barred by limitation. It is requested to note that there is no any
explanation given by the defendant for nonfiling of written statement.
The account of defendant became NPA and he was facing litigation is
not a sufficient reason nor it could be a ground to condone delay.
Present notice of motion is filed by defendant after two years from the
-- 2 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 3 Order.
date of decree. It is requested to reject the motion.
6. In view of aforesaid assertion by one side and denied by
other, following points arise for my determination and my findings
thereon with reasons are narrated as follows :
SR.NO. POINTS FINDINGS
1 Whether defendant prove that he was
prevented by any “sufficient cause” from
appearing when the suit was called on for
hearing ?
In the Negative.
2 Whether defendant prove that he was
indulged in litigating the suit, however,
due to sole fault of a lawyer, he failed to
file written statement ?
In the Negative.
3 What order ? As per final order.
REASONS
7. It is to note at the outset that there is no grievance of
defendant that summons was not served. Accordingly there is no
grievance of defendant in respect of first ground available to defendant
as per Rule 13 Order 9 of CPC. Therefore Point No.1 and 2 arise for
determination in respect of second ground available to the defendant in
view of Rule 13 of Order 9 of CPC i.e. whether defendant was
prevented by any sufficient cause.
8. On perusal of roznama before the Original Side of the
Hon'ble High Court, Advocate Vagyani was present before the Court.
There is no statement of defendant that required instructions and all
-- 3 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 4 Order.
documents were handed over by the defendant to the lawyer.
Therefore defendant is failed to prove that it was a sole responsibility of
the lawyer in not filing written statement.
9. It is to note that plaintiff has issued a notice through
advocate Mehta vide Exh.7 dated 17/03/2009 which was duly served
on defendant. Reply of defendant vide Exh.8 dated 04/04/2009 is duly
served on plaintiff by RPAD. It seems there was no order for issuance of
summons from the Court, a legal notice was issued by the plaintiff to
the defendant. There is no case of defendant that he agitated in respect
of erroneous entries in the account maintained by the plaintiff firm.
10. It is necessary to note that the copy of account extract was
annexed by the plaintiff alongwith plaint. A cheque issued by the
defendant dated 07/05/2008 vide Exh.6 bearing No. 205335 for the
amount of Rs.1,05,410/ (Rupees One Lakh Five Thousand Four
Hundred Ten Only) was bounced for “Not arranged for”. Therefore,
defendant holds no ground to agitate that it was sole responsibility of
then advocate for defendant and fair opportunity was not provided to
him.
11. In case of Mahabir Singh V/s. Subhash (A.I.R. 2008 S.C.
276) it is held that “defendant for getting ex parte decree set aside was
required to establish that either no summons was served on him or he
had sufficient cause for remaining absent on the date fixed for hearing
the suit ex parte.”
12. The term “sufficient cause” as explained in Parimal V/s.
Veena (AIR 2011 Supreme Court 1150) means the cause for which
-- 4 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 5 Order.
defendant could not be blamed for his absence. As discussed above,
there is no sufficient cause shown by the defendant for failure in filing
written statement.
13. Ld. Advocate for defendant relied over The Secretary,
Department of Horticulture, Chandigarh and Ors. V/s. Raghu Raj
(MANU/SC/8167/2008) and Rafiq and Another V/s. Munshilal and
Another [ (1981) 2 Supreme Court Cases 788 ]. In both the rulings
the responsibility of lawyer is explained in adversary legal system.
However it was relating to when the client is from village and he is
illiterate. In present case, defendant is a private limited company.
Therefore he cannot shoulder his responsibility by engaging the lawyer.
14. It is another ground mentioned in a Table 1 of Para 17 of
notice of motion that account was not properly maintained by plaintiff.
In account reconciliation statement in column no.2 it is mentioned that
Bill No. 4144 dated 04/02/2006 was in respect of bill amount
Rs.4,005/ (Rupees Four Thousand Five Only), however it was shown
for the amount of Rs.1,44,977/ (Rupees One Lakh Fortyfour Thousand
Nine Hundred Seventyseven Only) i.e. excess amount of Rs.1,40,792/
(Rupees One Lakh Forty Thousand Seven Hundred Ninetytwo Only).
15. It is surprising to note that the grievance in respect of
impugned bill was not raised by defendant for next five years.
Therefore it is observed at the inception that the two notices issued by
plaintiff are not agitated nor replied by the defendant. After 2006 the
transactions with plaintiff were going on for 4 years. On perusal of
account extract, on numerous times plaintiff has supplied the goods and
defendant has made payment. Considering all grounds in total, Point
-- 5 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 6 Order.
No.1 and 2 are replied in negative.
16. Defendant is failed to prove that he was prevented by any
sufficient cause from appearing or failure to file written statement. It
appear that as plaintiff has filed execution petition to recover the
amount, defendant preferred this motion to protract the execution of
decree.
17. It is to note that suit was filed by the plaintiff for recovery
of Rs.75,93,988/ (Rupees Seventyfive Lakhs Ninetythree Thousand
Nine Hundred Eightyeight Only), however, in view of the account
extract the Court has decreed the suit for the amount of Rs.33,51,140/
(Rupees Thirtythree Lakhs Fiftyone Thousand One Hundred Forty
Only). Therefore it appear that the Court has obtained due care when
judgment was pronounced on 01/07/2015, even though it was ex
parte. In short, motion is devoid of merit. Hence the order:
ORDER
1. Notice of Motion No. 393/2018 stands rejected with cost of
Rs.3,000/ (Rupees Three Thousand Only) be paid to
plaintiff.
2. Accordingly N/m No. 393/18 is disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 23/07/2019. Mumbai.
1. Dictated on : 23/07/2019.
2. Transcribed on : 25/07/2019.
3. Signed on : 26/07/2019.
4. Delivered to Certified :
Copy Section on
-- 6 of 7 --
N/m No. 393/18 in Suit No. 3109/11. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/07/2019. 5.43 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23/07/2019.
Judgment/Order signed by P.O. on 26/07/2019.
Judgment/Order uploaded on 26/07/2019.
-- 7 of 7 --