Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s.2282/2019 in EA 194/2013 1
MHCC010132432019
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 2282 OF 2019
(HIGH COURT CHAMBER SUMMONS NO.2095 OF 2011)
IN
EXECUTION APPLICATION 194 of 2013
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.:MHCC01-013243-2019 )
Immediate Courier Express L.I.C. ...Plaintiff
Versus
Sunil Dhutia ...Defendant
Appearances:-
Advocate Sujata Choudhary for the Plaintiff/DH.
Advocate Mansukhani for the Defendant/JD.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 11th MARCH 2020
O R D E R
1. By this Chamber Summons the defendant requested to set aside
Ex-parte decree dtd.28.06.2011 and to allow the defendant to put
appearance in the suit through his advocate. The plaintiff resisted the
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Chamber summons. Heard the Ld advocates on behalf of both the
parties.
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
circumstance to set aside the decree?
Affirmative
2. What order? As per final order
REASONS
AS TO POINTS NO 1 AND 2:-
3. The Ld Advocate on behalf of the defendant argued that the court
may under special circumstances set aside the decree. In respect of the
subject suit, the amount claimed is not a liquidated amount. Therefore,
the suit cannot be maintainable as a summary suit. This is a special
circumstance to set aside the decree passed in a summary suit. He also
argued that the defendant has made payment to Ibrahim Khalifa who
was the partner of the plaintiff. As there was full and final settlement,
the defendant did not appear in the suit. The defendant is ready to
abide by any condition imposed by this court including deposit of
amount. Ld advocate submitted that there being special circumstances,
the decree has to be set aside and Leave to defend has to be granted to
the defendant. He relied on 'Surya Prakash V/s Mohd. Jamil Khan' AIR
1995, Rajasthan, 16 regarding limitation for setting aside decree under
Order 37 Rule 4 of CPC.
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4. On the other hand, Ld advocate on behalf of the plaintiff argued
that the court cannot go to the merits of the suit as to whether it is
maintainable or not. The defendant has to satisfy the cause of non
appearance before the court despite service of summons. The defendant
has to establish special circumstance which means something
extraordinary and not general. The defendant had knowledge that
Ibrahim Khalifa is not partner of the plaintiff. Therefore, payment made
to Ibrahim Khalifa cannot discharge the defendant from the dues
payable to the plaintiff. The payment being to the third person, it
cannot be said that the defendant was discharged from the dues. She
argued that no grounds are made out to set aside the decree. Therefore,
she requested to reject the Chamber summons. She relied on, 'Rajani
kumar V/ Suresh Kumar', AIR 2003 SC 1322.
5. I have carefully gone through the decision in the case of Surya
Prakash. The Hon'ble Rajasthan High Court held that, Order 9 Rule 13
is not applicable to the Summary Suit and for filing application under
Order 37 Rule 4 of CPC the residuary period of limitation of 3 yrs under
Article 137 of the Limitation Act will apply. In the case in hand the
decree was passed on 28.06.2011, the present chamber Summons was
filed on 16.12.2011. Thus, as per the decision in the case of Surya
Prakash, the Chamber summons is filed within 3 yrs and within
limitation. Even otherwise, considering contention of the defendant that
he came to know about the decree only after levy of attachment on
01.12.2011 on the property of the defendant, it has to be observed that
since the date of knowledge of the decree, the present Chamber
summons is filed within 30 days. Thus, even if the period of limitation
requisite for application under Order 9 Rule 13 is applied to the present
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set of circumstances, still there has been sufficient cause for delay.
6. I have also gone through the decision of Hon'ble supreme court in
the case of Rajani Kumar. In the same case, the defendant therein had
shown sufficient cause for his absence on the date of passing Ex-parte
decree, but he failed to disclose facts which would entitle him to defend
the case. The Hon'ble supreme court also held that it is not enough for
the defendant to show special circumstance which prevented him from
appearing or applying for leave to defend, he has also to show by
affidavit or otherwise facts which would entitle him to defend the suit.
Thus, it is clear from the decision in the case of Rajani Kumar that the
court has power not only to set aside the decree but also to grant leave
to defend.
7. In the case in hand, the plaintiff came with the pleading in the
suit that by agreement dtd.01.04.2009 executed between the plaintiff
and the defendant an arrangement was entered between them for
carriage of documents and non documents for UAE shipments upon
terms and conditions as contained therein. All the invoices raised by the
plaintiff were to be settled by the defendant within 4 working days. For
the period from 23.06.2009 to 25.11.2009, the plaintiff provided
services to the defendant in a sum of AED.288, 735.00 out of which the
defendant has paid sum of AED.180, 350, leaving balance of AED. 108,
385. Despite several demands including legal notice dtd.11.01.2010 of
demand, the defendant failed and neglected to make the balance
payment. Therefore, the plaintiff claimed decree for said amount with
interest.
8. Thus, the suit of the plaintiff is based on the agreement
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dtd.01.04.2009. The copy of same agreement is produced on record. In
para 7 the charges/prices are mentioned. As per the same the defendant
was to pay Airline charges. The DO charges were to be paid by the
plaintiff and to clear the shipment. The rates provided were Ex-Dubai.
For courier shipments or for heavy trans shipments other charges were
to be paid by the defendant as per actual as required. The same clause
does not specify any fixed amount. However, the copy of rates filed on
record shows that the rates were differently mentioned as for Dubai it is
shown as Dhs 5.50, for Sharjah Dhs.12 etc.. Thus, the rates specified are
different and not uniform. Therefore, it is clear that the contract does
not mention any liquidated amount. The amount is depending on the
services rendered, the places for where the same have been rendered
etc.. Copy of statement of account in respect of the defendant was also
produced with the plaint. The same shows various debits, credits and
balance entries. The amounts charged for different invoices is appearing
to be different. The balance of AED 108, 385 is shown after various
debit credit entries giving weightage to the balance depending on the
same. Thus, the amount as claimed by the plaintiff is based on the
account involving various debit credit entries. In view of this
background, it is clear that the suit cannot be said to be of liquidated
amount on a written contract. Keeping in view the same aspect, suit by
summary procedure was not maintainable. This ground is sufficient to
set aside the decree and proceed with the suit as a regular suit by
granting leave to defend to the defendant.
9. It is not disputed that summons was served on the defendant. The
ground mentioned by the defendant for non appearance is that he made
payment of AED 65,000 in discharge of due amount to Ibrahim Khalifa,
earlier partner of the plaintiff. The defendant has also produced copies
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of the receipts dtd.10.04.2010 and 22.08.2010 showing payment of
AED 65,000 by the defendant to said Ibrahim Khalifa. The receipt
dtd.22.08.2010 mentions that the amount was paid being full and final
settlement with Imex courier i.e. plaint. The plaintiff argued that
Ibrahim Khalifa had already left the plaintiff partnership and the
defendant was made known about it. Therefore, subsequent payment by
the defendant to Ibrahim Khalifa cannot discharge the defendant. In
this regard the defendant has relied on mail dtd.18.01.2010,
20.01.2010 issued by the defendant to the plaintiff. It is not disputed
that prior to the same e-mails, the plaintiff had issued the legal notice of
demand dtd.11.01.2010 to the defendant. It is also not disputed that on
receipt of said legal notice, the defendant issued the mails
dtd.18.01.2010 and 20.01.2010 to the plaintiff. In the e-mail
dtd.18.01.2010, the defendant quoted that Ibrahim Khalifa asked the
defendant to not to pay outstanding amount to the plaintiff till further
instructions. The same e-mail clearly shows that the defendant had
knowledge that Ibrahim Khalifa separated from the plaintiff partnership
firm. Said Ibrahim Khalifa with his manager Mr. Hanif entered into
contract with the defendant. Thus, the defendant was aware that
Ibrahim Khalifa had separated from the plaintiff partnership firm.
However, it is also apparent that the defendant had informed the
plaintiff about the demands of Ibrahim Khalifa in respect of the
payment as according to Ibrahim khalifa the plaintiff was to settle his
dues. The e-mail dtd.20.01.2010 also shows that the defendant asked
the plaintiff to resolve the same issue with Ibrahim khalifa and hanif.
The defendant shown readiness to pay the amount whatever decided.
Thus, the defendant had clearly informed about the demands of Abdul
khalifa and asked to settle the amount. Despite it the plaintiff did not
respond to the defendant. It seems that the defendant treated the
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silence of the plaintiff as a consent to pay the amount to Ibrahim Khalifa
in discharge of due amount. Now, whether such payment to Ibrahim
khalifa will discharge the defendant is a different thing, but at this stage
it is appearing that the defendant paid amount of AED 65,000 to
Ibrahim Khalifa towards the amount due and payable to the plaintiff.
Same circumstance at this stage is sufficient to set the clock back by
setting aside the decree particularly when the defendant shown
readiness to abide by the conditions imposed by this court including
condition to deposit certain amount. Though the defendant has not
disputed his liability to pay to the plaintiff, he has claimed that he
discharged the liability. Thus, the defendant has not disputed the basic
factor that he owed certain amount to the plaintiff. The defendant will
be under obligation to prove his case of payment to Ibrahim Khalifa and
discharge on that ground. Till then it will be appropriate to direct the
defendant to deposit in the court the principal amount claimed by the
plaintiff. It is also appropriate to pay the cost to the plaintiff for setting
aside the decree. No doubt whether the defendant really paid the
amount to Ibrahim khalifa, whether payment of said amount can be
treated as discharge from the liability towards the plaintiff will be the
questions open in the suit proceeding but at this stage the material is
sufficient to set aside the decree on said grounds. Having regard to all
these circumstances, it is just and proper to set aside the decree dtd.
28.06.2011 passed in the summary suit No. 2160 of 2010 subject to cost
of Rs.20,000/- to be paid to the plaintiff by the defendant and to grant
leave to defend to the defendant subject to deposit of the principal
amount of AED 108,385. Hence, point No.1 is answered in the
affirmative and in answer to point No.2 order as follows is passed:-
ORDER
1. The Chamber Summons No.2282 of 2019 is allowed as under.
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2. Ex-parte Decree dtd.28.06.2011 passed against the defendant is
set aside subject to cost of Rs.20,000/- (Rupees Twenty Thousand only)
to be paid to the plaintiff by the defendant.
3. Leave to defend is granted to the defendant subject to deposit in
the court the amount in Indian rupees of AED 108,385 (Arab Emirates
Dirham One Lakh Eight Thousand Three Hundred Eighty Five only).
4. The defendant shall deposit both the amounts, as directed above
vide Clause No. 2 and 3, on or before 24.04.2020.
5. The defendant shall file his written statement on 24.04.2020
subject to compliance of the conditions of deposits of the amounts as
directed above.
6. The Chamber summons 2282 of 2019 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 11-03-2020 City Civil Court,Gr. Mumbai
Dictated on : 11-03-2020
Transcribed on : 12-03-2020
Signed on : 12-03-2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13-03-2020 adt 5.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 11-03-2020
Judgment/Order signed by P.O. on 12-03-2020
Judgment/Order uploaded on 13-03-2020
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