Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2324 OF 2019
(CNR NO.MHCC010064312019 )
IN
SUMMARY SUIT NO.486 OF 2015
National Commodities Management Services Ltd. )..Plaintiff
V/s.
M/s. Modem Securities & Personnel Services ).. Defendant
Appearances :
Ld. Adv. Rama Nageshwaran for plaintiff.
Ld. Adv. P. R. Moses for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 03/12/2022.
ORDER
1 The instant notice of motion is taken out by defendant for
setting aside the order dated 19/07/2018 and to grant the permission to
defend the suit.
2 The record discloses that the plaintiff has filed Summary
suit bearing No.486/2015, for recovery of an amount of Rs.5,86,585/
with an interest, contending that the plaintiff is a company engaged in
providing procurement, warehousing, inspection, valuation, quality
testing, gradation, assessment, monitoring services including risk
management services etc. for commodities and inventories and other
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services related to the commodity markets. The defendant is a company
engaged in providing security services and other allied services. As per
the agreement dated 14/10/2014, the plaintiff engaged the defendant
for providing security services. Accordingly, the defendant provided one
Mr. Kamal Singh for warehouse at Shajapur, Madhya Pradesh, which
was owned by one Mr. Sushilkumar Agrawal and was leased the said
warehouse to the plaintiff.
3 On 29/01/2011, Mr. Kamal Singh, Security Guard provided
by the defendant was on duty at the warehouse, met with fatal accident
and died on the spot, his wife filed a suit bearing No.90/2011, under the
Workmen's Compensation Act, 1923, against the plaintiff, defendant and
owner of the warehouse before the Ld. Labour Court, Ujjain, for grant of
compensation. The said suit was decreed directing the plaintiff to pay
the compensation to the wife of deceased Kamal Singh, which the
plaintiff has paid accordingly by depositing the amount of Rs.5,86,585/
in the Ld. Labour Court. In the said judgment, the Ld. Labour Court has
directed the plaintiff to pay the compensation to the legal heirs of
deceased Kamal Singh first and then recovered it from the defendant.
Accordingly, the plaintiff had filed a petition before the Ld. Labour Court
for recovery of paid amount from the defendant but, the said petition is
disposed off owing to the jurisdiction. Consequently, the plaintiff has
filed summary suit before this Court. Upon service of summons for
appearance, the defendant appeared before the Court. The plaintiff has
taken out summons for judgment and served it upon the defendant. In
spite of service, the defendant did not appear and reply to the summons
for the judgment. He also did not apply for leave to defend within
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stipulated period. Consequently, summons for judgment remained
uncontested. After scrutinizing the record, the summons for judgment is
made partly absolute and decree is passed in favour of plaintiff directing
the defendant to pay an amount of Rs.5,86,585/ alongwith an interest
@ 12% per annum from 05/02/2013. Thus, this Court has passed an
exparte decree against the defendant by order dated 19/07/2011.
4 In consequent to the decree, the plaintiff initiated execution
proceeding and after receipt of notice under execution, the defendant
has taken out the instant notice of motion contending that after the
receipt of summons for judgment, he engaged one Counsel Mr. Kailash
Tiwari, who agreed to appear in the above matter and filed Vakalatnama
but, he did not appear and represent the defendant in the matter.
Whenever the defendant used to call the said Counsel, he replied to
plaintiff that he is looking after the matter and assured that the
defendant should not bother about his matter. The defendant being
layman believed the words of the Counsel. But, he astonished by the
service of notice of execution of proceeding. He contacted the present
Counsel and noticed that the earlier Counsel has not taken any steps.
Even, not filed his appearance and reply to the proceeding. It is his
contention that he believed by the assurance given by the Counsel Mr.
Kailash Tiwari and because of his mistakes, matter is disposed off ex
parte. It is further contended that defendant has a good case on merit,
as in the Agreement with the plaintiff, nowhere it is contemplated that
defendant is liable to pay the compensation. Mere observations of Ld.
Labour Court are not sufficient to hold the defendant liable to pay the
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amount of compensation. Claiming that he has a good case for defence,
the defendant prayed for setting aside the exparte order of the decree
with grant permission to leave to defend.
5 The plaintiff appeared, filed reply denying the contentions
of the defendant. It is the contention of plaintiff that the Ld. Counsel of
defendant had appeared by way of filing Vakalatnama on 22/09/2017
and thereafter, he did not appear even though service of summons for
judgment. The defendant was deliberately and willfully not appeared
before the Court and putting his fault on his Counsel. He further
contended that the instant notice of motion is filed to delay the
execution having no defence and prayed for its dismissal.
6 Heard both sides at length. Perused the record. No doubt,
the provisions of Order 37 Rule 4 of Code of Civil Procedure, empowers
this Court to set aside the decree passed and to grant to leave to defend
to the defendant but, under the special circumstances.
7 So as to examine the existence of special circumstances, the
reference to the facts of case of defendant shows that he has assigned
only reason for his absence is because the default committed by the Ld.
Counsel but, nothing is on record to show that the defendant has taken
any action against the Ld. Counsel. Mere blaming the Ld. Counsel is
not sufficient to hold that the defendant was having good reason to set
aside the decree. The defendant was required to take an action against
his Ld. Counsel by initiating an appropriate proceeding. Besides that, I
am of the view that it is the equal responsibility of defendant to remain
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present before the Court on each and every date with his Counsel and
to be get updated himself. Mere relying on the words of Counsel would
not suffice to protect the defendant from the effect of the decree passed
in his absence. The only reason assigned of inaction by counsel, is not
sufficient to hold that defendant has make out special circumstances.
8 It is further contended that the defendant has a good
defence in this case, claiming that there is no agreement between the
plaintiff and defendant regarding the payment of compensation to the
employee provided by the defendant. The copy of judgment of Ld.
Labour Court is filed on record. In Para (16) under Issue No.5, the Ld.
Labour Court, Ujjain, has clearly observed that defendant No.1 ( present
plaintiff) is at liberty to recover the amount paid towards the
compensation from the defendant No.3 (present defendant) as per rule.
It is to note that the present defendant was the party to the proceeding
before the Ld. Labour Court, Ujjain, as defendant No.3 and he was well
aware of the observation of Ld. Labour Court. The defendant has not
challenged the said judgment to get expunged the said observations.
Now, the defendant is prevented from resisting the observation made in
the judgment of claim petition made by the Ld. Labour Court. In case
of Arjun Singh vs. Mahendra Kumar reported in AIR 1964 SC 993,
the Hon’ble Supreme Court has observed that the principle of
rejudicata applied also as between the stages in the same litigations to
this extend that the Court as Trial Court or Higher Court having at an
earlier stage decided a matter in one way will not allow the parties to
reagitate the matter again at the subsequent stage of the same
proceedings.
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9 It reveals from the record that present summons for
judgment is made absolute following the observations made by the Ld.
Labour Court in the claim petition. Hence, until & unless the
observation made in the judgment by Ld. Labour Court, is set aside by
the competent Court, I am of the view that the defendant cannot claim
that there is no agreement between the plaintiff and defendant
regarding the payment of compensation to the employee provided by
the defendant, thus, he has no good case to defend in this suit. In the
result, I am of the view that defendant has failed to make out the
special circumstances to set aside the decree passed by this Court dated
19/07/2018.
10 Considering the above observations, I am of the view that
notice of motion is devoid by merits, deserves to be dismissed. With
this, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.2324/2019 in S.C. Suit
No.486/2015, is hereby dismissed.
2. Notice of Motion disposed off accordingly.
(Dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 03/12/2022 C.R. No.03, Gr. Mumbai
Dictated on : 03/12/2022
Typed on : 03/12/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
05/12/2022
at about 06.00 p.m.
(Ms. Vidya Abhijit Mande)
Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 03/12/2022
Order signed by Hon'ble Judge on : 05/12/2022
Order uploaded on : 05/12/2022
at about 06.00 p.m.
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