Order 1

Order Details: Notice of Motion
Pdf Text: NM 710/18 in SU 682/91 .. 1 .. Order
CNR No. MHCC010026242018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 710 OF 2018
IN
EXECUTION APPLICATION NO.482 OF 2014
IN
SUIT NO. 682 OF 1991
M/s. Bharat Tin Works ...Plaintiff.
V/s.
Akzo Nobel India Limited & Ors. ...Defendants.
AND
Akzo Nobel India Limited ...Applicant.
Appearances:
Learned Adv. Mr. P. Ranjan for applicant.
Learned Adv. Mr. Pankaj Shah for plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI M.M. SYED.
(C.R.No.04)
DATED : 08th July, 2019.
: ORAL ORDER :
1. This is Notice of Motion taken out by the applicant Akzo Nobel
India Limited, under OrderIX, Rule13 of C.P.C. to set aside the
exparte decree passed in suit No. SC suit No. 110682 of 1991 (High
Court Suit No.3932 of 1991) dated 06.05.2013.
2. According to the applicant, the suit was initially filed before the
Hon'ble High Court and later on the pecuniary jurisdiction of the
Hon'ble High Court was increased in the year 2012. Therefore, the
matter was transferred to City Civil Court, Greater Mumbai.
3. The defendant had a decorative paint plant in Rishra. The paint
business was transferred by way of joint venture with Berger Paints in
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NM 710/18 in SU 682/91 .. 2 .. Order
2001 as can be evidenced from the Balance Sheet for 200102 and also,
the Rubber business at Rishra was sold in 2005. Thus, the defendant
does not have any record, and concerned personnel of the company
handling the said transaction are also no longer with the applicant. The
land and building at Chowringhee Road was sold by the defendant No.1
to Reliance Industries Limited on 30.03.2002. Further the building at
Fosbery Road, Sewri was assigned/transferred to Reliance Industries
Limited vide MOU dated 15.02.2007.
4. The plaintiff had filed the suit for recovery of sum of
Rs.2,27,576.16/ with interest thereon at the rate of 24% per annum on
principal amount of Rs.1,78,353.16/. This Court passed decree on
06.05.2013, wherein, the applicant jointly and severally alongwith
other respondents were ordered to pay an amount of Rs.2,27,576/
with interest thereon at the rate of 9% per annum on principal amount
of Rs.1,78,353/ till realization of the aforesaid amount.
5. The applicant came to know only upon receipt of the plaintiff's
Advocate's notice dated 21.12.2017 alongwith the copy of summons in
Execution Proceedings of decree dated 06.05.2013. Therefore, the
applicant was not able to defend his case and the Court has passed
exparte order against it. No notice or summons are served upon the
applicant though, the matter was transferred from Hon'ble High Court
to City Civil Court, Greater Mumbai.
6. It has further contended that in the year 1991, Gagrat and
Company Advocates, Mumbai were looking after the matters of
defendant No.1, but the said firm was also dissolved, due to certain
internal disputes between partners of the said firm. Even the Court
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NM 710/18 in SU 682/91 .. 3 .. Order
Receiver was appointed in respect of the property of the said firm. Even,
assuming that the suit summons was served upon the applicant, it is
quite possible that the matter must have been entrusted to the said
Advocate's firm, but due to their own internal disputes, the said might
have missed the date of the matter and did not have any
communication with the applicant company. The matter was never
listed before the Hon'ble High Court and no notice was issued for the
date of hearing dated 18.10.2012 by this Court. Therefore, it is not a
deliberate act of the applicant not to appear in the matter and it was
only because of unawareness that the applicant did not appear before
the Court and they came to know only when the attachment notice was
issued in Execution Proceeding. Therefore, the applicant prayed to set
aside the said decree dated 06.05.2013 passed in SC Suit No.682 of
1991 and opportunity must be given to applicant to defend the suit.
7. The plaintiff resisted the Notice of Motion by filing reply. The
plaintiff admitted that they have filed the suit before the Hon'ble High
Court, which was transferred from the Hon'ble High Court to City Civil
Court, Mumbai in the year 2012. They also admitted that the City Civil
Court passed an order of judgment and decree on 06.05.2013 and
directed to pay the amount mentioned in the Notice of Motion with
interest thereon at the rate of 9% per annum on principal amount of
Rs.1,78,353/.
8. The plaintiff denied rest contentions of the applicant. They
contended that the applicant/defendant No.1 is guilty of “suppresio”
very and “suggesio falsi”. There was an amalgamation and merger
between the original defendant No.1 Viz. I.C.I. India Ltd., with the
applicant/defendant No.1 viz. Akzo Nobel India Ltd. Normally, the
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NM 710/18 in SU 682/91 .. 4 .. Order
transferee company takes over all the existing assets and liabilities of
the transferor company. In the present matter, exparty decree is passed
against the original defendant No.1 creating a liability. The applicant
has deliberately and purposefully not disclosed order of amalgamation,
if any passed by a competent Court of law allowing the merger.
Therefore, the Notice of Motion is liable to be dismissed with costs.
9. The defendant No.1 was served with the Writ of Summons
through Bailiff of Sherif of Mumbai on 21.02.1992. Therefore, the
Notice of Motion is delayed by almost 26 years from the date of service
of Writ of Summons. The applicant stepped into the shoe of original
defendant by virtue of merger/amalgamation. Accordingly, the
applicant is bound by decree. The plaintiff has filed suit on 25.11.1991
and accordingly, the Court has directed to pay an amount of
Rs.2,27,576/ to defendant Nos.1,2,3 jointly and severally with interest
thereon at the rate of 9% per annum. Till filing of Execution Proceeding
on 06.06.2014, principal amount of Rs.1,78,353/ with interest thereon
9% per annum is due. The defendant No.3 has paid an amount of
Rs.75,000/. Therefore, the defendants and applicant are liable to pay
an amount of Rs.4,96,352/. Therefore, they contended that the
applicant failed to make out the case under OrderIX, Rule13 of C.P.C.
and prayed for dismissing the Notice of Motion.
10. The applicant also filed the rejoinder and denied the contention
raised in the reply filed by the plaintiff and supported to the contention
of the applicant.
11. Following points arise for my determination on which I record my
findings as under for the reasons to follow :`
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NM 710/18 in SU 682/91 .. 5 .. Order
POINTS FINDINGS
1. Whether the applicant show that the
summons was not duly served or the
defendant was prevented by any sufficient
costs, from appearing in the SC Suit
No.682 of 1991 ?
In Negative
2. Whether the applicant is entitled to get the
relief as prayed ?
In Negative
3. What order? As per final order
: R E A S O N S :
AS TO POINT NO.1 TO 3 :
12. Heard learned Adv. Mr. P. Ranjan for applicant and learned
Adv. Mr. Pankaj Shah for plaintiff at length. At the very outset, I would
like to mention here that there is no dispute that initially the suit
No.110682 of 1991 came to be filed before the Hon'ble High Court
against the defendant Nos.1,2 & 3. There is also no dispute that due to
increase in the pecuniary jurisdiction of this Court, the suit came to be
transferred to the City Civil Court, Greater Mumbai in the year 2012.
There is also no dispute that after transfer of the suit, the City Civil
Court, Greater Mumbai passed a judgment and decree dated
06.05.2013 and directed the defendant Nos.1,2 & 3 to pay jointly and
severally an amount of Rs.2,27,576/ within three months from the date
of order and also, directed to pay interest at the rate of 9% per annum
on principal amount of Rs.1,78,353/. The plaintiff has filed the
Execution Proceeding bearing No.482 of 2014 and same is pending.
13. Admittedly, to invoke the jurisdiction under OrderIX, Rule13
of C.P.C., the concerned party has to show that the summons was not
duly served upon him. In the present matter, the plaintiff has come with
specific case that on 21.02.1992, the summons was duly served upon
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NM 710/18 in SU 682/91 .. 6 .. Order
defendant No.1. I reiterated that affidavit in rejoinder came to be filed
on behalf of the applicant, but the applicant did not deny about the
service of summons alleged to be made upon defendant No.1 on
21.02.1992. Therefore, in these circumstances, it can be said that the
summons was duly served upon the defendant No.1.
14. I would like to further mention here that the defendant No.1
did not appear and none of the person on behalf of defendant No.1
appeared and filed any affidavit denying the said contention of the
plaintiff. During the course of argument, the learned Advocate for the
plaintiff submitted that the plaintiff had filed the affidavit in respect of
service of summons and, therefore, exparte decree came to be passed.
It is general practice in this Court that the task of service of summons
on the party who seek the summons. I find much substance in the
contention of the plaintiff that unless the affidavit in respect of service
is filed, no exparte decree can be passed.
15. No doubt, the learned Advocate for the applicant vehemently
argued that the personnels who were working with the defendant in the
year 199192, are no longer with the applicant and therefore, the
applicant was not aware. It has also alternatively argued on behalf of
the applicant that one Gagrat and Company Advocates, Mumbai was
representing or looking after the legal affairs of the defendant, but due
to internal dispute between partners of the said firm, they might missed
the matter and, therefore, could not effectively defend the matter. In
this case, I would like to mention here that the applicant is not sure
about the said Gagrat and Company Advocates, Mumbai, appears before
the Court in SC Suit No.110682 of 1991. No documentary evidence is
filed on record. Therefore, on assumption and presumption, the decree
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NM 710/18 in SU 682/91 .. 7 .. Order
cannot be set aside.
17. The learned Advocate for the applicant further argued that no
notice was issued either to the defendant or the applicant, when the
matter was transferred from Hon'ble High Court to this Court and
therefore, the decree passed in Suit No.110682 of 1991 dated
06.05.2013, is liable to be set aside.
18. In this context, I would like to mention here that the
summons was duly served upon the defendant No.1 on 21.02.1992 and
matter was transferred, after a long period in the year 2012. It is not the
case of the applicant that the defendant was appeared, when the matter
was pending before the Hon'ble High Court, but the defendant No.1 was
not aware when the matter was transferred to this Court in the year
2012. Further more, there is no provision that on transfer of the matter
from one Court to another Court, a notice is required to be given to the
concerned parties. Therefore, in these circumstances, the argument
advanced by the learned Advocate for the application, cannot be
accepted.
19. Thus, considering the facts and circumstances as mentioned
above, I come to the conclusion that the applicant failed to establish
that no suit summons was duly served upon the defendant No.1 or the
defendant had shown sufficient cause for non appearing in the SC Suit
No.110682 of 1991 and could not defend the matter effectively.
Therefore, decree passed in SC suit No.110682 of 1991 dated
06.05.2013 cannot be set aside. Consequently, the Notice of Motion
taken out by the applicant is liable to be dismissed. Hence, I answered
point Nos.1 & 2 in the negative and proceed to pass the following order.
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NM 710/18 in SU 682/91 .. 8 .. Order
: O R D E R :
1. The Notice of Motion No.710 of 2018 is hereby
dismissed.
2. No order as to costs.
(M.M. SYED)
Judge, (C.R.No.4)
Date : 08.07.2019. City Civil Court, Gr. Mumbai
Dictated on : 08.07.2019.
Transcribed on : 09.07.2019.
Signed on : 09.07.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.07.2019, at 5.15 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri M.M. SYED
Court Room No.4
Date of Pronouncement of Judgment/order 08.07.2019.
Judgment/order signed by P.O. on 09.07.2019.
Judgment/order uploaded on 09.07.2019.
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