Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1764 OF 2021
IN
SUIT NO. 4021 OF 2011
Bank of Baroda,
A Body, corporate constitute under
the Banking Companies (Acquisition)
and Transfer of Undertakings) Act
1970, having its head office at Mandvi,
Baroda and having its Corporate office
at: C26, GBlock, BandraKurla Complex,
Bandra (E), Mumbai 400 051, And
Having branch at Gulalwadi Branch
situate at 24/30, 2nd Prajapole Lane,
C.P. Tank road, Mumbai 400 004 ...Plaintiff
V/s.
1.M/s. K.P. Metals
A proprietary Concern
2. Mahendrakumar Sharma,
aged 51 years, Occupation: Business
Both 1 & 2 above having address
at Room No.11, Building No.3C,
3rd floor, Jaihind Estate Coop.
Hsg. Soc.Ltd., Dr. Atmram Merchant
Road, Bhuleshwar, Mumbai 400 002 … Defendants.
Appearance:
Advocate M/s. A.R. Bamne & Co. for the Plaintiff.
Advocate Mr. Asjwom Rana for the Defendants.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 26th August, 2021.
ORDER
The applicationN/M is of of defendant No.2, who is
proprietor of defendant No.1, under Order 9 Rule 13 of CPC seeking to
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set aside the decree passed exparte on 05.10.2018 in Civil Suit No.
4021 of 2011.
2. According to defendant No.2, he had appeared in the suit
through Advocate. He had filed the written statement and contested
the suit. His Advocate had prepared for crossexamination of the
plaintiff witnesses, but when on 19.06.2018, the matter was called out,
neither he nor his Advocate remained present in the Court. Therefore,
the order of no crossexamination of PW1 came to be passed. Then
after closure of the evidence of the plaintiff on the very next day the
evidence of the defendant was closed. After hearing the plaintiff's
Advocate, the suit came to be decreed on 05.10.2018.
According to him, in May 2018, the marriage of his dauther
was solemnized. He was preparing for marriage of his daughter.
Thereafter, in June and July, he was suffering from ailment and as per
medical advice took bed rest. His Advocate also did not turn up in the
Court on 19.06.2018, for crossexamining the plaintiff's witness for the
reasons best known to him. No further progress of the suit was
communicated by the Advocate to him. He claimed that, he is having
substantial defence and it is necessary to contest the suit on merit.
There was sufficient cause, which prevented him from appearing in the
court, when the decree was passed on 05.10.2018. He asked to set
aside the order dated 5.10.2018 and restore the suit to its original state.
3. The plaintiff objected the N/M vide reply dated
16.10.2019. According to the plaintiff, since the beginning, the
defendant was prolonging the hearing of the suit. He and his Advocate
intentionally not appeared to crossexamine the witness. The cause
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shown, is not sufficient, satisfactory and convincing. The decree passed
in the suit on 05.10.2018, is proper, correct and legal. There is no
reason to set aside the decree.
4. Heard both. Perused the N/M, the reply, record and
proceeding of the suit No. 4021/2011. On its basis following points rise
for the determination and the findings to each of them for the reasons
recorded below.
Sr.No. POINTS FINDINGS
1. Whether there was sufficient cause which
prevented the defendant No. 2 from
appearing in the court on 19.06.2018,
when the order of crossexamination of
PW1 was passed and on 05.10.2018,
when the decree was passed in suit
No.4021/2011 ?
Yes.
2. Whether the Judgment and decree in Suit
No.4021/2011 is required to set aside
and the suit is required to restore to its
original state ?
Yes.
3. What order N/M is allowed..
Reasons:
As to Point Nos. 1 & 2 :
5. The plaintiff has disputed the maintainability of the N/M on the
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premise that the decree passed on 05.10.2018, is not an exparte decree.
Defendant No.2 was well appeared in the suit. He had filed written
statement. At the crucial stage of crossexamining the plaintiff’s
witness, he did not turn up. Despite opportunity given he did not lead
the evidence. Therefore, only filing of an appeal is the remedy available
to defendant.
6. A perusal of Rule 13 Order 9 of CPC, nowhere it appears
that the said provision may be invoked only when there is a direction to
proceed with the suit exparte against the defendants. In present case, it
is appearing that though the defendant had filed written statement on
record, he could not contest the suit. He could not crossexamine the
material witnesses of the plaintiff. He could not lead his evidence.
Therefore, the decree dated 05.10.2018, is an exparte decree and for
setting aside the same, Rule 13 Order 9 of CPC applies. It is difficult to
accept the argument that only an appeal is the remedy and not an
application under Rule13 Order 9 of CPC.
7. Admittedly, on 19,06.2018 suit was kept for cross
examination of PW1. On that day, neither defendant No.2, nor his
Advocate remained present in the Court. Therefore, order of no cross
examination of PW1 against defendant No.2 came to be passed.
Defendant No.2 relied on marriage card of his daughter Varsha, which
goes to show that on 11.05.2018, her marriage with bridegroom
Ashuthosh was solemnized. The date 19.06.2018 was after the
marriage solemnized of the daughter. Because of busy in the marriage
ceremony of the daughter and thereafter, not attending the date
19.06.2018, is a sufficient cause, shown by defendant No.2 for his non
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appearance in the suit. The fact that the Advocate appointed for
defendant No.2 was not present for crossexamining the plaintiff’s
witness. It was necessary for Advocate to attend the proceeding on the
date 19.06.2018 and crossexamine the plaintiff’s witness. But he did
not turn up. Thereafter, also the Advocate of defendant No.2 did not
turn up in the suit. Since, defendant No.2 had engaged the services of
Advocate, it was for the Advocate to conduct the crossexamination of
the plaintiff’s witness (PW1) in absence of defendant No.2. Had it
been his inability to crossexamine the witness in absence of defendant
No.2, it was for him to convey that inability to the Court. But the fact
that Advocate for defendant No.2 did not turn up to the court.
Therefore, for the absence of Advocate, defendant No.2 cannot be asked
to suffer.
8. Further two medical certificates dated 15.06.2018 and
10.07.2018, go to show not keeping the good health by defendant No.2.
Said cause prevented him from appearing in the Court and to take
further steps in the suit. There is nothing on record to disbelieve that
excuse shown by defendant No.2. It is not that since the beginning
defendant No.2 was not appearing and contesting the suit. It is a
matter of record that by filing written statement in time, he had
contested the suit. He was very much present on 23.03.2018 and
sought time from the Court for crossexamination of PW1. Had it been
the complete negligence on the part of defendant No.2, then there was
no reason to set aside a decree dated 05.10.2018.
9. But at the same time, it appears that defendant No.2 was
negligent to some extent that he did not remain in contact with the
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Advocate after 23.03.2018. Had it been hs timely follow up with the
Advocate, there would not have been no occasion for the Court to pass
an order of “no crossexamination of PW1”, then “no evidence” of
defendant and “then passing of the decree”. He simply relied on the
Advocate and did not take any care that whether his Advocate was
attending the Court or not. The fact that due to his negligence, the
plaintiff sufferred. The plaintiff was required to keep its witness present
on the dates of hearing. The witness was discharged due to absence of
defendant No.2 and his Advocate. Therefore, though defendant No.2 is
entitled to the order of setting aside the order dated 5.10.2018, it must
be only on compensating the plaintiff in terms of costs. The plaintiff is
a banking institution. A valuable time of the officers of bank was spent
in Court proceeding. Those officers could not provide their services to
the customers, because they attended the Court proceeding and
therefore, though there is need to set aside the decree dated 05.10,2018
and give opportunity to defendant No.2 to cross examine the witness
(PW1), it should be subject to payment of costs of Rs.10,000/. Lastly,
answering the point Nos.1 & 2 accordingly, following order is passed.
ORDER
1. Notice of Motion No.1764 of 2019 is allowed and decree in suit
No.4021/2011 dated 15.10.2018, is set aside subject to payment of
costs of Rs.10,000/ by defendant No.2 to the plaintiff within seven
days from today.
2 The payment of costs is condition precedent.
3. On payment/deposit of costs, the original suit No.4021/2011 be
restored to its original state of crossexamination of PW1
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4. Both the parties to attend the Court on 18.09.2021 at 11.00 a.m.
in main suit No.4021/2011, without expecting fresh service of notice of
suit.
5. Notice of Motion No. 1764/2019 is accordingly diposed off.
(H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 26.08.2021
Transcribed on : 27.08.2021
Signed on : 31.08.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 31.08.2021 5.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
26.08.2021
JUDGMENT /ORDER signed by P.O. on 31.08.2021
JUDGMENT /ORDER uploaded on 31.08.2021
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