Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 1483/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2293 OF 2018
(CNR NO.MHCC010074032018)
IN
SUMMARY SUIT NO.1483 OF 2017
Lachmibai Hassanand Rohra ...Plaintiff
V/s
Bluplast Corporation & ors. ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 06/12/2018
Adv. Ms.Lalwani for plaintiff.
Adv. Mr.Rajesh Patil for defendants.
ORDER BELOW NOTICE OF MOTION NO.2293/18
1. This Notice of Motion is taken out by the defendant for setting
aside the exparte decree dated 09/04/2018 passed in Summary Suit
no.1483/17.
2. The plaintiff has resisted to the said Motion by filing reply.
3. Read the Notice of Motion and reply.
4. Heard to learned advocate for the defendants as well as for the
plaintiff at length. Considering the facts of the case and circumstances on
record, following points arise for my consideration and my finding thereon
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for the reasons recorded thereunder:
POINTS FINDINGS
1 Whether the defendants have shown the special
circumstances for setting aside exparte decree
passed in Summary Suit no.1483/17 on
9/4/2018 ? In negative
2 What order ? As per final order
REASONS
AS TO POINT NO.1
5. Uncontraverted and undisputed facts as seen from the pleadings
of the parties and circumstances on record needs to be stated first to outset
for the better appreciation of the points in controversy. It is not in dispute
that the plaintiff filed the abovesaid Summary Suit for the recovery of an
amount of Rs.3,60,000/ alongwith further interest on the principal amount
of Rs.3,00,000/ at the rate of 18 % p.a. There is no dispute that the said suit
was proceeded exparte against the defendants and a exparte decree came to
be passed against them on 09/04/2018 and the defendants were directed to
pay an amount of Rs.3,60,000/ with interest at the rate of 18% p.a. on
principal amount of Rs.3,00,000/ from the date of suit till its realization.
6. Now, it has to be seen whether the defendants have established
the special circumstances, for setting aside that exparte decree or not, for
that purpose, it is just and necessary to consider the submissions made by the
parties.
7. Mr.Patil the learned advocate appearing for defendant has
submitted that the defendant came to know about the exparte decree on
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16/4/2018. It is submitted that though the Writ of Summons was served
upon the defendants by the registered Post Acknowledgment Due but they
were not having legal knowledge about filing of the Vakalatnma or giving
the appearance within 10 days on service of the Writ of Summons. So also,
they were not having knowledge regarding the exparte order as well as
exparte decree. Mr.Patil has submitted that defendants have a good case on
merit as no transaction as contended by the plaintiff was taken place. So
also, there was no privity of contract between plaintiff and defendant.
Mr.Patil has submitted that the defendants were already preoccupied in
marriage scheduled at their Native place Rajasthan, and it was not possible
for them to travel from Rajasthan to Mumbai. They contacted to their
advocate but when the matter came on board for hearing on 02/04/2018 at
that time the defendants were not in Mumbai and they were not in a position
to file the Vakalatnama in the abovesaid suit. It is submitted that the
advocate informed them that without the signature of the defendants he
could not appear before the Court and when the matter came for the second
time, exparte decree came to be passed within very short time on
09/04/2018 and there was no change of the circumstances for the
defendants, as they were unable to remain present even on 09/04/2018.
Mr.Patil has submitted that defendants have good case on merit and if the
motion is not allowed, serious prejudice would cause to them. Lastly,
Mr.Patil has requested to make the Notice of Motion absolute.
8. In support of his contention Mr.Patil has heavily relied upon the
following cases:
1) B.Rajeshwar Rao Vs.G.B.Tilak, 2005(5)ALD 344
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Wherein the Hon'ble High Court has held that in an application
filed under Rule 4 of Order 37, the defendant must not only plead existence
of the “Special Circumstances” that prevented him from entering appearance
within a stipulated time but also ingredients of triable issue.
2) P.N.Films Ltd. And another Vs. Overseas FILMS Corporation Ltd.,
1957 SCC Online Bom 38,
Wherein the Hon'ble Bombay High Court has held that:
“ O.37, R.4 is a self contained Order which deals not only with the right of
the defendant to appear in a summary suit in which a decree has to be
passed if leave to defend is not given to him, but also with the procedure to
be followed if the defendant wishes to have a decree passed in a summary
suit set aside.”
9. Per contra, the learned advocate for the plaintiff has submitted
that the plaintiff is a Senior Citizen aged 85 years and filed the suit on the
basis of dishonour of cheque of Rs.3,00,000/ issued in favour of the plaintiff
and the said cheque was executed by the defendants towards the discharge
of their legal liability. It is submitted that the plaintiff advanced a sum of
Rs.3,00,000/ by cheque in favour of Bluplast Corporation a partnership
firm, having the defendants its partners. The said cheque was issued in
favour of the defendant no.1 and the amount of Rs.3,00,000/ was debited
from the account of plaintiff on 21/2/2015 and credited to the account of
defendant no.1. It is contended that the defendants on their own accord paid
interest upto 18/1/2016 to the plaintiff. On 12/10/2016 the plaintiff
presented the said cheque for encashment but it was dishonoured for the
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reasons “Funds Insufficient”. Thereafter, the plaintiff requested at number of
times to the defendants for making the payment of cheque amount
alongwith interest but they failed and neglected to do so. Ultimately, a notice
came to be issued by the plaintiff through her advocate on 11/10/2017 but
the defendants did not reply to the said notice nor complied the same.
Consequently, the plaintiff filed the aforesaid Summary Suit on 5/12/2017
for the recovery of amount.
10. It is submitted by the learned advocate for the plaintiff that on
15/1/2018 the defendants, received Writ of Summons but they did not give
appearance or file their Vakalatnama within 10 days from the service of Writ
of Summons upon them. As the defendants remained absent on 26/2/2018,
therefore, the exparte order came to be passed against them, and on
09/04/2011 Court passed the exparte decree. It is submitted that the Writ of
Summons was duly served upon the defendants. Therefore, it was for the
defendants to appear within stipulated time in the aforesaid suit but they
failed to do so.
11. It is submitted that defendants have not shown special
circumstance for setting aside the decree. So also, it is submitted that the
defendants want to kill the time and to harass the plaintiff who is the senior
citizen, on one or another ground. It is submitted that the Notice of Motion is
barred by law of limitation as it is not taken out by the defendants within
time. Therefore, it is requested to dismiss the Notice of motion.
12. It is pertinent to mention here that the learned advocate for the
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plaintiff has heavily relied upon the following cases:
1) Karumilli Bharathi Vs. Prichikala Venkatachalam AIR 1999, Andhra
Pradesh 427.
2) Mohan LAL v. Om Prakas, AIR 1989 Rajasthan 132,
3) Madhusudan Shrikrishna Vs. M/s.EMKAY Exports Mumbai and
others, 2008(6) Mh.L.J.797
13. I have duly considered the above submissions of both the sides so
also, I have gone carefully through the case record and cited cases.
14. First of all it is necessary to mention here that the exparte decree
came to be passed by the Court on 09/04/2018 and the present Notice of
Motion is filed on 20/6/2018. The advocate for the plaintiff raised an
objection that it is not filed within limitation. The advocate for defendant
Mr.Patil submitted that exparte decree passed under Order 37 R 4, the
limitation applies is one provided under Article 137 of Limitation act ,and
such limitation is three years and the period of 30 days limitation is not
applicable as per Article 123 of Limitation Act. It is pertinent to mention here
that in the case of PN Films Ltd. Vs. Overseas Film Corporation Ltd. AIR
1958 Bombay 10, the Hon'ble Bombay High Court has dealt with this issue
and held that for setting aside the exparte decree passed in Summary Suit
the limitation could be three years but not 30 days. If in the matter in hand
the period of 3 years is taken there will not be any delay in filing the present
Notice of Motion for setting aside the exparte decree. Therefore, I do find
that the Notice of Motion is filed within the prescribed period of limitation.
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15. In the matter it appears that defendants issued the cheque of
Rs.3,00,000/ in favour of the plaintiff on 20/2/2015 bearing no.014933
drawn on Union Bank of India, Zavery Bazar Branch, Mumbai and when the
said cheque was presented by the plaintiff for encashment, it was
dishonoured for the reason “Funds insufficient” thereafter, she had filed the
abovesaid suit.
16. The defendants have come with a case that when the Suit
Summons was served by Registered Post Acknowledgment Due they were
out of town and went to Rajasthan for attending the marriage of their close
relative. So also, it is contended that they have good case on merit and
because of abovesaid reason Vakalatnama is not filed by them within time.
17. It is necessary to mention here that mere failure to file
Vakalatnama or failure to enter an appearance cannot be said to be a
“Special Circumstances” for setting aside the exparte order. In the matter, it
appears that the defendants have not shown the sufficient cause to their
failure to enter an appearance and to apply for leave to defend the suit but it
was also necessary for them to make out availability of the defense in answer
to the claim put forth by the plaintiff. That is the import of expression a
“special circumstances” in Rule 4 of Order 37. Mere failure to file the
Vakalatnama or failure to enter an appearance that cannot be said to be a
special circumstance for setting aside the exparte decree. It is not that every
failure including for the reasons of being not vigilant that would be sufficient
to catagorise the same as a special circumstances for setting aside the decree
under Order 37 Rule 4 of the CPC.
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18. It is well settled that when a Summary suit is instituted and based
on the cheque which is dishonoured effect of Section 138 and 139 of
Negotiable Instruments Act, raising the statutory presumption that the
cheque was issued in discharge of liability is a relevant consideration to keep
in mind. The said sections cast a burden upon the defendant to rebut the
presumption. Summary suits instituted on cheques which are dishonoured
are therefore, stand on higher footing than summary suit instituted on the
basis of other documents. In such cases, the Court will have to take into
consideration the statutory presumption which is raised when the cheques
are dishonoured. It is well settled that the object behind providing the
statutory presumption under the Negotiable Instruments Act, has to be kept
in mind while judging the credibility of defense raised by the defendant in
summary suit. When a cheque is dishonoured the Court is enjoined with the
duty to scrutinize the defense put up by the defendant with a much higher
decree of care and circumspection. Such summary suits cannot be treated as
on par with the cases instituted on contracts or invoices etc. where such
statutory presumption do not operate. It is worth place to mention here that
the legislative intent behind enactment of Section 138 and 139 of Negotiable
Instruments Act, is to prevent abuse of the Banking system. Thus, one who
issues a cheque extends a solemn promise to pay. Based on this promise and
action the recipient arrange their affair and quite often enter into further
transaction.
19. Under Rule 4 of Order 37 the defendant has to explain the special
circumstance which prevail him from appearing in the Court and seek leave
to defend the suit within time. In the instant case it appears to me no special
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circumstance entitle the defendants to claim the benefit under Rule 4 Order
37 has been set up. The mere contention of the defendants that they were in
Rajasthan for attending the marriage of their close relative, could not have
prevented them from engaging a pleader and instructing him to appear on
their behalf and seek leave to defend the suit. One of the defendant could
have boarded the train for engaging the advocate and after meeting to his
counsel should have returned to that place. But it appears the defendants
willfully remained absent and inspite of service, did not either personally or
through the pleader cared to make their appearance.
20. For the aforesaid reasons, I am therefore not inclin to accede to
the request of the defendants that the exparte decree be set aside . In the
result, I do find the notice of Motion devoid of substance and needs to be
dismissed. In the result, I answer point no.1 accordingly and pass the
following order:
: ORDER :
1. Notice of Motion No.2293/18 is dismissed.
2. No order as to costs.
(M.M.UMAR)
Judge,
06/12/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 06/12/18.
Date of Transcription : 06/12/18.
Date of signature : 10/12/18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10/12/18 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
6/12/18
Judgment/order signed by P.O on 10/12/18
Judgment/order uploaded on 10/12/18
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