Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.2277-19 in Suit No.989-17
MHCC010062602019
IN THE CITY CIVIL COURT AT GR. MUMBAI
NOTICE OF MOTION NO.2277 OF 2019
IN
SUMMARY SUIT NO.989 OF 2017
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
Dr. Jamnadas & Co., )
A Proprietorship concern having its Office at )
207, Samuel Street, Vadgadi, Masjid Bunder )
(West) Mumbai 400 003, through its Proprietor )
Mr. Dhirajlal Jamnadas Shanghvi, Age 79 years ) … Plaintiff
Versus
Kaiser Industries Limited )
A Public Limited Company, duly )
Incorporated in the year 1997 under the )
Provisions of the Companies Act, 1956 )
having its Registered Office at )
204, Shivam House, Commercial Complex )
Karampura, New Delhi-110015 )
Also at )
commercial Office of Kaiser Industries Limited )
371-C, M.I.E. Bahadurgarh, Haryana-124507 )
Through its Director, Mr. Sanjeev Malhotra ) … Defendant
Appearances:-
Mr. Manish Trivedi, Adv. for plaintiff.
Mr. Gopal Hegde and Ms. Harsha Vaid, Advocates for defendant.
CORAM : HHJ DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 16TH MARCH 2020
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O R D E R
1. By this Notice of Motion, the defendant requested to set aside ex-
parte decree dated 01/04/2019 passed in Summary Suit No.989/2017,
by condoning the delay caused to file the present notice of motion. The
plaintiff contested the notice of motion by filing reply. Heard learned
advocates on behalf of both the parties. Perused the record.
2. Considering the material on record and submissions made on
behalf of the parties points arise for determination alongwith my
findings thereon for the reasons recorded are as under :-
Sr.
No.
Points Findings
1. Whether the defendant made out
special circumstances to set aside the
decree dated 01/04/2019 passed in
Summary Suit No.989/2017 ?
Negative.
2. What order ? As per final order.
Reasons
As to points No.1 and 2 :-
3. The learned advocate on behalf of the defendant argued that the
defendant could not file reply to summons for judgment. The
defendant had earlier engaged an advocate. Thereafter the defendant
engaged another advocate namely Harsha Vaid who appeared on
27/9/2018 and filed her vakalatnama. However, again the defendant
instructed advocate Harsha Vaid to not to appear on subsequent dates of
hearing as the earlier advocate had assured that he will appear in the
matter as counsel. However, the earlier advocate did not appear in the
matter on 19/10/2018, but he appeared on 29/11/2018. Thereafter, he
did not appear. The defendant was under bonafide impression that the
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earlier advocate attended the matter regularly. Further as the
defendant travel for business purpose, he could not give instruction to
advocate Harsha Vaid to prepare reply. So also, due to sudden death of
close relative in the family, the defendant could not follow with the
advocate. When the defendant called his advocate Harsha Vaid on
15/04/2019, thereupon when she checked the status, the defendant
came to know that decree has been passed on 01/04/2019. The
learned advocate argued that it is the fault of earlier advocate. The
client should not suffer for the fault of the advocate. He argued that the
suit is based on running account and summary suit is not maintainable
on running account. There is dispute about quality of the goods. Thus,
the defendant has triable issues. Therefore, he requested to allow the
notice of motion and set aside the decree.
4. On the other hand, the learned advocate on behalf of the plaintiff
argued that the decree passed in summary suit for want of reply to
summons for judgment/leave to defend cannot be equated with ex-
parte decree in a ordinary suit. In order to set aside the decree passed
in summary suit, under O.37 R.4 of C.P.C., the defendant must make out
special circumstances. However, in the case in hand, the defendant
failed to make out special circumstances. The reasons mentioned for
not filing the reply/leave to defend are not sufficient. Further there is
nothing to show that the defendant is entitled to leave to defend. The
plaintiff has been 85 years old, the suit was filed in 2017, it was decreed
in 2018. Till date the plaintiff could not enjoy the fruits of the decree.
Considering the age of the plaintiff, it will not be proper to go back by
setting aside the decree. On these grounds, the learned advocate for
plaintiff requested to reject the notice of motion.
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5. The defendant relied on (1) Subash Raina Vs. Suraj Prakash, AIR
1977 J & K 30, (2) P. N. Films Vs. Overseas Films, AIR 1958 Bombay 10,
(3) Rafiq Vs. Munshilal, AIR 1981 S.C. 1400, (4) P. D. Shamdasani Vs.
Central Bank, Bombay Law Reporter Vol. XL 238. The plaintiff relied on
Madhusudan Vs. M/s. Emkay, 2008 (6) Mh.L.J. 797.
6. I have carefully gone through the decisions in these cases. In the
case of “Subhash Raina”, the decision in the case of “P. N. Films” is
relied on. It is held in the case of Subhash Raina that limitation in
respect of O.9 R.13 of C.P.C. is not applicable for the application to set
aside decree in summary suit and Article-181 under the Limitation Act
of 1908 is applicable. Thus, the limitation for such application will be 3
years. In view of the decision in the same case, this court accepts that
the provision under O.9 R.13 cannot be made applicable for the
application for setting aside decree passed in summary suit. Under the
Limitation Act of 1908, the application for setting aside decree in
summary suit will be governed by Article-137 which provides limitation
for 3 years. Thus, as the decree is passed on 01/04/2019, the present
application filed in 2019 itself is within limitation and no question
arises to condone the delay.
7. In the case of “Madhusudan”, the Hon'ble Bombay High Court
held that in the case of summary suit, it is not only the requirement of
law that the defendant has to disclose sufficient cause for his failure to
enter an appearance and apply for leave to defend the suit, but it is also
necessary to make out availability of a good defence to the defendant in
answer to the claim put forth by the plaintiff and that is the import of
the expression “special circumstances” in R.4 of O.37. It is also
observed that mere claim on the part of the defendant that due to
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oversight and being under tension of other litigation that there was
failure to enter an appearance, can by no stretch of imagination said to
be a special circumstances to exercise power under O.37, R.4 of the
C.P.C. Thus, it is clear that the defendant has to make out special
circumstances including that he has substantial/good defence to grant
leave to defend and that the court should not be casual in accepting
mere claim of the defendant that due to oversight or being under
tension there was failure to participate in the proceeding. These
principles of law must be kept in view while deciding the present notice
of motion.
8. In the case in hand, the record shows that after appearance of the
defendant, the plaintiff filed registered summons for judgment on
02/08/2018. The defendant was under obligation to file the
reply/leave to defend within 10 days. However, the defendant did not
file the same. Thereafter, on 27/09/2018 another advocate namely
Harsha Vaid appeared for the defendant, but even on said date the
reply/leave to defend was not filed. Thereafter only once i.e. on
29/11/2018 the advocate of the defendant appeared, but did not file
the reply. Thereupon the defendant or his advocate never filed any
reply and the suit ultimately came to be decreed by allowing the
summons for judgment. It is apparent that since 02/08/2018 till
01/04/2019, the defendant did not take steps to file the reply or to file
notice of motion for accepting the reply by condoning the delay. The
reason given by the defendant is that the earlier advocate did not
appear in the matter. However, the earlier advocate had appeared on
29/11/2018. Prior to that itself the period of 10 days had expired. The
advocate could have, on 29/11/2018, submitted notice of motion for
accepting the reply/leave to defend. It is difficult to believe that though
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the advocate appeared before the Court, he would not file such notice
of motion though instructed by the client. Thus, fault does not appear
to be in the advocate, but it appears that the defendant neglected the
matter. It is pertinent to note that if the advocate committed
negligence, a question will arise as to why the defendant did not
prosecute the advocate for negligence. Even a simple notice was also
not issued to the advocate putting the grievance. These circumstances
add to the inference drawn above that the defendant neglected the
matter. Rest of the reasons given in the affidavit in support of notice of
motion are that the deponent of the affidavit travel for business purpose
from one place to another place and also that due to sudden death of
close relative in the family, he could not give instructions to his present
advocate for further appearance and to prepare reply. However, the
same averments are vague as there is no specification as to when the
deponent travel for business purpose, to what places he travelled, when
the death of the relative had occurred, what is the name of that relative.
No documents are produced in support of these contentions although
the contentions are such that regarding which documents could have
been available. Further it has to be noted that the defendant is a public
limited company. It is not an individual. The deponent is merely
authorized signatory. If the deponent was not available any other
person including the director of the company could have attended and
persuaded the suit. In this background the reasons as put-forth on
behalf of the defendant are not reliable, genuine and sufficient. It also
appears that defendant was aware that he has to file reply in the matter.
It is not that mere appearance was to be put. If it is so, there was no
reason for the defendant to rely merely on the appearance of the
advocate. Having considered all these circumstances, no good grounds
are made out by the defendant justifying his absence and failure to file
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the reply/leave to defend.
9. In the case of “Rafiq Vs. Munshilal”, as relied on behalf of the
defendant, the Hon'ble Supreme Court observed that party should not
suffer for in-action of his counsel. However, this Court has already
noted that it is not acceptable to say that the advocate was at fault, on
the other hand, it appears that the defendant neglected to look after the
matter. Further the decision in the case of “Rafiq” is in respect of
appellate proceeding before the Hon'ble High Court where the clients
are hardly required to attend and once they hand over the brief to the
advocate they rely on him. However, this is not the appellate
proceeding. It is not that presence of the defendant with the advocate
was not required. As reply/ leave to defend was to be filed or notice of
motion to condone the delay for filing the reply/leave to defend were to
be taken out presence of the defendant with the advocate to give
instructions and file the proceeding was necessary. In this background,
the decision in the case of “Rafiq” is not beneficial to the defendant in
the case in hand.
10. The decision in the case of “P. D. Shamdasani”, as relied on behalf
of the defendant, is not at all applicable to the case in hand since it is in
respect of restoration of suit dismissed in default.
11. Turning to the next aspect as to whether the defendant make out
availability of good defence, I must note that the affidavit in support of
notice of motion does not contain even a single sentence demonstrating
as to how a good defence is available with the defendant. Only a vague
averment is made that the defendant has good case on merit and there
are triable issues. Except such averment, there is no whisper at all as to
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how good defence is available, what are the triable issues and how the
defendant has good case on merits.
12. In the course of arguments only, the advocate for defendant
argued that para 4 and 23 of the plaint show that the suit is based on
running account, but summary suit is not maintainable on running
account. It is also argued that the defendant has good defence
regarding the quality of the goods supplied.
13. I have carefully gone through the plaint and the documents relied
on behalf of the plaintiff in the suit. True that there is a mentioned in
para 4 of the plaint that a running account came to be established
between the plaintiff and the defendant. In para 23 it is mentioned that
the defendant maintains a running account. These averments appear to
be only passing averments. The suit has infact been based on the three
invoices out of which two are dated 19/11/2015 and third one is of
21/11/2015. The plaintiff claimed the recovery of amount for the
goods supplied as per those invoices. It may be noted here that the
plaintiff did not file, in the suit, any paper which can be said to be an
account paper or ledger account or running account between the parties
or in respect of the transactions between the parties. It is thus more
than clear that the suit was not based on running account.
14. Regarding the quality of goods it should be noted that the goods
were sold to the defendant in November 2015. The defendant vide e-
mails dated 03/03/2016, 28/03/2016, 04/04/2016, 12/11/2016
admitted the liability to pay the amount to the plaintiff and almost
every time apologized for delay being caused to make the payment. No
grievance at all was put by the defendant in these e-mails regarding the
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quality of goods. The defendant in course of arguments of notice of
motion produced copy of the reply notice dated 29/03/2017 given to
the plaintiff by the defendant. It is not disputed that when the plaintiff
issued legal notice of demand on 22/03/2017, the defendant in reply
sent the reply notice dated 29/03/2017. Grievance regarding quality of
goods was put for the first time in the reply notice dated 29/03/2017.
In the background of the circumstances, that for about more than one
year after delivery of the goods, the defendant did not raise any
grievance about the quality of the goods on the other hand vide several
e-mails admitted the liability to pay in addition to tender of the apology
; it can be inferred that the defence of quality of goods is a false
defence. Thus, the defendant also failed to establish that good defence
is available with it.
15. In view of the above circumstances, it has to be observed that the
defendant failed to make out special circumstances. Hence, point No.1
is answered in the negative. In answer to point No.2 order as follows is
passed :-
ORDER
The Notice of Motion No.2277 of 2019 is rejected.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 16/03/2020 City Civil Court,Gr. Mumbai
Dictated on : 16/03/2020
Transcribed on : 16/03/2020
Signed on : 16/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18/03/2020 at 3.05p.m. Mrs.S.A. Karre
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 16/03/2020
Judgment/Order signed by P.O. on 16/03/2020
Judgment/Order uploaded on 18/03/2020
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