Bombay High Court
Radhakrishna Carriers Pvt. Ltd. ... vs M/S. Pelhar Automobiles on 17 December, 2014
Bench: R.M. Savant
906. WP. 11145. 13.doc 17.12.2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11145 OF 2013.
1. Radhakrishna Carriers Pvt. Ltd.
Having registered office at 143,
Khemka Chawl, Sitaram Poddar Marg,
Fanaswadi, Mumbai-400 002
and administrative office at
94/100, Sitaram Poddar Marg,
14 Rungta Road, 1st floor,
Fanaswadi, Mumbai-400 002.
2. M/s. Radhakrishna Transport
Company a Partnership Firm
Having its office at 94/100,
Sitaram Poddar Marg,
14 Rungta Road, 1st floor,
Fanaswadi, Mumbai-400 002.
3. Shri. Purushottam M. Mane
Adult, Indian Inhabitant having
His office at 84/100, Sitaram
Poddar Marg, 14 Rungta Road,
1st floor, Fanaswadi,
Mumbai-400 002 .. Petitioners.
Versus
M/s. Pelhar Automobiles
A Proprietary Concern Owned and
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906. WP. 11145. 13.doc 17.12.2014
Managed by Shri. Shahnawaz Ghate
And having office at Vasai Phata,
Post: Pelhar, Mumbai- Ahmedabad
Highway, Taluka - Vasai, Dist. Thane .. Respondent.
Mr. V. S. Kapse with Mr. Ajit Kayale & Mr. Rajesh Dharap i/b Mr.
Harish R. Pawar, for the Petitioners.
Mr. A. R. Pai i/b Mr. V. V. Pai, for the Respondent.
CORAM : R.M. SAVANT, J.
ig DATE : 17th DECEMBER, 2014
ORAL JUDGMENT
1. Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2. The writ jurisdiction of this Court is invoked against the order dated
08.07.2013 passed by the learned Judge of the City Civil Court, Greater,
Mumbai, by which order, Notice of Motion No.427 of 2013 filed by the
Petitioners herein came to be dismissed. The Petitioners are the original
Defendants in the suit in question being Summary Suit No.4914 of 2012
filed by the Respondent herein under Order XXXVII of the Code of Civil
Procedure for recovery of a sum of Rs.6,06,110/- towards the supply of
petroleum products to the Petitioners between the period 2006 to July
2011. In the said suit, summons came to be served on the Petitioners. The
Vakalatnama on behalf of the Defendants came to be filed on 10.12.2012.
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The same was taken on record and marked as Exh.2. The suit was
thereafter adjourned to 4th February, 2013 for directions. It seems that on
28th December, 2012, a summons for judgment was moved before the Trial
Court by the Plaintiff and leave was sought to register the same. The Trial
Court passed an order directing the Plaintiff to register the Summons for
Judgment on or before the next date. On behalf of the Plaintiff, a request
was made for pre-poning of the date from 04/02/2013. The date was
accordingly preponed to 09.01.2013. On the said date i.e. 09.01.2013 the
Summons for Judgment was made returnable on the Plaintiff's
undertaking that the date would be communicated to the Defendants. It
appears that when attempt was made to serve the Summons for Judgment
on the advocate for the Defendants on 26 th December, 2012, the office of
the advocate was found locked and therefore, the same was served on the
Defendants on 28.12.2012. When the suit came up before the Trial Court
on 09.01.2013, the affidavit of service evidencing the service effected on
the Defendants was filed in the Court and was marked as Exh.3. The
Summons for Judgment was adjourned for hearing to 14.01.2013 at 2.45
p.m.. In view of the fact that no appearance put up on behalf of the
Defendants on 14.01.2013, the Summons for Judgment came to be made
absolute and a decree was passed in the following terms :-
"1. Suit is decreed with cost.
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2. The defendant nos.1 and 3 shall jointly and
severally do pay a sum of Rs.5,33,763/- to the plaintiff
within one month from the date of this order.
3. The defendant nos.1 and 3 shall pay interest
@ 18% p.a. for principal sum of Rs.5,33,763/- to the
plaintiff from the date of filing suit till realisation of
entire amount.
4. The defendant Nos.2 and 3 shall jointly and
severally pay Rs.72,347/- to the plaintiff within one
month from the date of this order.
The defendant nos.2 and 3 shall also jointly
and severally do pay interest @ 18% p.a. on principal
sum of Rs.72,347/- to the plaintiff from the date of
filing suit till realisation of entire amount.
6. Court fee be refunded as per rules.
7. Decree be drawn accordingly."
3. It is the case of the Defendants that when another Summary Suit
bearing No.4913 of 2012 filed by one M/s. Manor Auto Service against the
Defendants was on board of 31.01.2013 that the advocate for the
Plaintiffs, who is also appearing for the Plaintiffs in the said suit made a
statement that a decree has been passed in the present suit and after the
hearing in the said suit filed by the said M/s. Manor Auto Service
concluded, furnished a xerox copy of the judgment passed in the present
suit along with his covering letter dated 13.01.2013. The Defendants thus
having acquired knowledge of the decreeing of the Summary Suit No.4914
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of 2012, filed Notice of Motion No.427 of 2013 for setting aside the said
decree. In the affidavit in support of the Notice of Motion the fact that the
Summons for Judgment was served upon the Defendants on 28.12.2012
was accepted. However, it was stated that when their advocate was sought
to be contacted by the Defendants, it was found that he was out of station
in view of the fact that there was Christmas Vacation. It has been averred
in the said affidavit in support that in view of the fact that the Partner -
Proprietor Mr. Purushottam Mane i.e. the Respondent No.3 herein was
unwell on account of which he was advised bed rest from 01.01.2013 to
22.02.2013 that the papers could be entrusted to the advocate only in the
last week of January, 2013. It was further averred that since the returnable
date of Summons for Judgment could not be intimated to the advocate,
the advocate could not appear on 09.01.2013 as he was under the
impression that the suit would appear on board as per the date granted on
10.12.2012 i.e. 04.02.2013. It was averred that both the Applicants i.e. the
Defendants could not appear for the reasons afore-stated which resulted in
the decree being passed in the suit. It has lastly been averred that the
Defendants have a good, valid and substantial case on merits to the
alleged claim of the Plaintiffs and the suit involves triable issues. In the
affidavit in support, a reference is made to another Summary Suit bearing
No.4913 of 2012 filed by the said M/s. Manor Auto Service. It is therefore,
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prayed that the Court be pleased to set aside the ex-parte decree dated
14.01.2013. The said Notice of Motion was replied to on behalf of the
Plaintiffs. The reasons mentioned in the affidavit in support as to why the
Defendants were unrepresented on 09.01.2013 and thereafter on
14.01.2013 when the decree has been passed is questioned. The ground
made out in the affidavit in support of the illness of the Partner-Proprietor
is questioned on the ground that there are other persons who are
concerned with the Defendant Nos.1 and 2 and who could have taken
steps to see that the Defendants are represented. The Plaintiff therefore,
prayed for rejection of the Notice of Motion filed for setting aside the
decree.
4. The Trial Court considered the said Notice of Motion and by the
impugned order dated 08.07.2013 has dismissed the same. The Trial Court
did not deem it fit to accept the ground of illness of Mr. Purushottam
Mane firstly for the reason that there may be other persons who may be
working with the Defendant Nos.1 and 2 who could have informed the
Advocate and that since the original of the medical certificates were not
produced, the reason mentioned therein could not be accepted. The Trial
Court was of the view that the Defendants have not proved the special
circumstances which prevented them from appearing in the Court or the
circumstances which were beyond their control. The Trial Court in fact has
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recorded a finding that the material on record does not establish that the
circumstances were beyond the control of the Defendants which prevented
them from appearing and attending the suit after service of the Summons
for Judgment. The Trial Court in respect of the medical certificates
observed that for want of the original medical certificate, it is difficult to
believe that Petitioner No.3 was seriously ill and was unable even to
contact his advocate on telephone. The Trial Court as indicated above has
by the impugned order dated 08.07.2013 accordingly, dismissed the
motion.
5. Heard the learned counsel for the parties.
6. The learned counsel appearing on behalf of the Petitioners Mr.
Kapse would reiterate the case of the Petitioners urged before the Trial
Court. The learned counsel would contend that in view of the fact that the
advocate of the Defendants was under the impression that the suit would
come up on 4th February, 2013 as originally scheduled, he did not appear
in the suit on 09.01.2013 and on 14.01.2013 when it came to be decreed
as the Defendants had not informed him of the service of the Summons for
Judgment. The learned counsel would contend that in view of the fact that
the owner and proprietor of the Defendants was unwell, he could not
contact the advocate and after having acquired knowledge of the decree
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passed in the instant suit, the instant Chamber Summons has been filed
immediately thereafter on 4th February 2013. The learned counsel would
therefore, contend that it could not be said that the Defendants were
prosecuting the proceedings in a negligent or careless manner as the
Defendants had also filed their Vakalatnama in the suit within the time
which is prescribed for filing of a Vakalatnama in a Summary Suit. The
learned counsel would contend that apart from the reasons which are
appearing in the affidavit in support, the Defendants have an excellent
case on merits as in another Suit i.e. Summary Suit No.4913 of 2012,
based on the same notice and therefore involving identical facts, another
Learned Judge of the City Civil Court had granted conditional leave to the
Defendants. The learned counsel would contend that both the suits i.e.
instant suit and the second suit No.4913 of 2012 being based on the same
notice dated 15th October, 2012 are therefore virtually based on the same
set of facts. It was therefore, the submission of the learned counsel that
even on merits, the Defendants have a good case and if that be so, in view
of the judgments of the Division Benches of this Court reported in
2008(6) Mh.L.J. 797 in the matter of Madhusudhan Shrikrishna Vs.
M/s. Emkay Exports, Mumbai and others and the judgment reported in
2007(5) Mh.L.J. 752 in the matter of Govindbhai Dayal Mange Vs.
Vijaykumar Balkishan Agarwal and another. The decree which has been
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passed by the Trial Court is required to be set aside. The learned counsel
would contend that since in a cognate matter being Company Petition
No.529 of 2014 the Defendants have been directed to deposit the
decreetal amount as also the amount claimed in the second Suit filed by
the said M/s. Manor Automobiles the interest of the Plaintiff is protected.
The learned counsel also sought to make submissions revolving around the
triable issues which arise in the suit. In support of which contention, he
sought to place reliance on the judgment of learned Single Judge of this
Court reported in 2003(3) Mh.L.J. 932 in the matter of Sun N Sand
Hotel Limited Vs. M/s. V. V. Kamat, HUF.
7. Per contra, learned counsel Mr. Pai appearing for the original
Respondent i.e. Respondent herein would support the impugned order.
The learned counsel would submit that the Defendants have not satisfied
the test of special circumstances which are required to be shown by them
and the reason put forth in the affidavit in support cannot qualify as a
special circumstance. The learned counsel in reply to the contention urged
that in another suit, conditional leave has been granted would contend
that the cause of action for filing the said suit is different as also the set of
facts on which the second suit was based. The learned counsel in support
of his contention submitted that the Defendants have not satisfied the
special circumstances test and has sought to place reliance on the
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judgment of a learned Single Judge of this Court reported in AIR 2003
Bombay 496 in the matter of Indian Express Newspapers (Bombay)
Ltd., Vs. Shiv Kapooria and others. The learned counsel would contend
that even on merits the Defendants have no case and the defences which
they are now raising can be said to be moonshine and therefore, the
Defendants are not entitled for the decree being set aside.
8. Having heard the learned counsel for the parties, I have considered
the rival contentions, the issue i.e. raised in the above Petition is as
regards the entitlement of the Defendants for the decree being set aside by
virtue of the application filed by them under Order XXXVII Rule 4 of the
Code of Civil Procedure. A reading of the provision discloses that a
Defendant who seeks setting aside of a decree has to make out special
circumstances for the same. The requirement of Order XXXVII Rule 4 can
be said to be enunciated by the judgment of the Division Benches of this
Court in Madhusudhan Shrikrishna's (supra) case and Govindbhai Dayal
Mange's (supra) case. It would therefore, be opposite to refer to the said
Judgments. Insofar as Madhusudhan Shrikrishna's case (supra) is
concerned, the Division Bench has held that apart from showing sufficient
cause for not entering an appearance and applying for leave to defend the
suit, it is also necessary for a party to apply under Order XXXVII Rule 4 to
make out the availability of a good defence in answer to the claim put
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forth by the Plaintiff and that is the import of the expression "special
circumstances". The Division Bench further observed that a bonafide lapse
on the part of the party would be established from the facts as happened
in a particular manner in a given case to exercise power under Rule 4 of
Order XXXVII. The Division Bench in Madhusudhan Shrikrishna's case
(supra) can be said to have reiterated what has been held in Govindbhai
Dayal Mange's (supra) case, wherein the Division Bench has held that in
order to get an ex-parte decree set aside under Order XXXVII, Rule 4 of the
Civil Procedure Code, the appellant is required to prove that he had
sufficient cause for remaining absent and is also required to prove that he
has a reasonably good defence on merits on the basis of which the
appellant can be granted leave to defend. Hence, the Division Benches
have crystallized the requirement of Order XXXVII Rule 4 by holding that
apart from sufficient cause, the Defendants would have to prove that they
have a good defence on merits. It is in the said context that the instant
matter would have to be adjudicated.
9. In so far as sufficient cause is concerned it is an undisputed position
that the notice of the Summons for Judgment was served on the
Defendants and not their advocate, as the advocate was not available. The
reason of the illness of the Partner-Proprietor of the Defendants has not
been accepted by the Trial Court on the ground that the original of the
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Medical Certificate was not produced. Assuming that the said ground is to
be kept aside, it is required to be noted that the person who has accepted
the notice might have not understood the seriousness of the matter and
therefore, may not have informed the advocate. The difference between a
Regular Suit and a Summary Suit might be known to the party and hence,
might have informed the advocate of the notice of the Summons for
Judgment being received after he had acquired knowledge of the decree
being passed. What is required to be noted is that immediately after
acquiring knowledge that the instant Notice of Motion came to be filed,
hence, it cannot be said that the Defendants have acted in a negligent and
careless manner as the filing of the Notice of Motion was immediate. In
my view,therefore,it cannot be said that the case of the Defendants in so
far as sufficient cause is concerned is required to be rejected outright.
10. This is in so far as sufficient cause is concerned. Now, in so far as
merits of the defence is concerned, though in the affidavit in support of
the motion only a statement appears that Defendants have a good defence
on merits. It is required to be noted that in the subsequent para there is
reference made to another suit filed by M/s. Manor Auto Service being
suit No.4913 of 2012. Insofar as the said suit is concerned, it is required to
be noted that the instant suit and the said suit No.4913 of 2012 is founded
on the same notice i.e. notice dated 15 th October, 2012. In the said notice,
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it is mentioned that the present Plaintiffs and M/s. Manor Auto Service are
associates of each other. In the said suit, the claim arising is out of the
transaction of an identical nature wherein the vehicles of the Defendants
also used to go to the Petrol Pump of the Plaintiff in the said suit for filling
fuel. It is required to be noted that by a letter dated 25 th September, 2012,
addressed on behalf of the Defendant No.1- Radhakrishna Carriers Pvt.
Ltd., the factum of excess petrol being discharged by the Plaintiffs vis-a-vis
the vehicles of the Defendants was alleged and the claim of
Rs.39,99,052/- was sought to be raised against the Plaintiff. The notice
dated 15th October, 2012, of the Plaintiff seems to be a result of the said
letter dated 25th September, 2012, addressed on behalf of the Defendant
No.1. The two suits are also based on the statement of running account as
also the invoices of the Plaintiffs which invoices according to the Plaintiffs
remained to be paid by the Defendant. Insofar as the Suit No.4913 of 2012
is concerned, as indicated above, the Trial Court has by order dated 4 th
February, 2014 passed in the Summons for Judgment filed in the said suit
has granted conditional leave on deposit of a amount of Rs.50,000/- in the
said suit. Hence, when in an identical set of facts wherein, the same
Defendants have been granted conditional leave whether it can be said
that in the instant suit the Defendants do not have any case on merits.
Though various contentions are sought to be raised on behalf of the
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Respondent i.e. original Plaintiff as regards the defences which are sought
to be raised on behalf of the Defendants by relying upon the documents in
the compilation. Prima-facie, it cannot be said that the defence raised by
the Defendants is such that they are not entitled to even leave to defend.
More so, in the light of the fact that in another suit in the same set of
facts, conditional leave has been granted. The judgment of the Learned
Single Judge in Indian Express Newspapers (Bombay) Ltd. (supra), in my
view would not aid the Plaintiff i.e. to Respondent herein in his contention
that special circumstances have not been shown by the Defendants. In the
said judgment, the Learned Single Judge held that when Parliament
provides that the Court may set aside a decree under special
circumstances, it had in mind circumstances mainly factual in nature like
the defendants being prevented from appearing in Court or presenting his
case. The Learned Judge further held that the special circumstances
should be circumstances not in existence when the Court passed the
decree or if in existence, not brought to the notice of the Court. Having
regard to the grounds on which the setting aside of the decree was sought
in the said case the Learned Single Judge observed that the said
circumstances are common and ordinary in the sense that they are usual
grounds of law that are taken by parties in the Appellate Court. Such is
not the case in the instant matter as this Court both on the ground of
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sufficient cause as also on the ground of merits in the decree has come to
a conclusion that the Defendants have satisfied the special circumstanes
test. It seems that in the Company Petition filed by the Plaintiff in both
the suits being Company Petition No.529 of 2014, minutes of order came
to be filed on 19th September, 2014, by which minutes of order, the
Defendants were directed to deposit Rs.7,90,000/-, insofar as instant suit
is concerned, and an amount of Rs.1,85,225/- insofar as second suit is
concerned, after deducting the amount of Rs.50,000/- already deposited
pursuant to the order granting conditional leave. In my view, therefore,
the interest of the Plaintiffs in both the suits can be said to be adequately
protected.
11. In the facts and circumstances as afore-stated, the impugned order
dated 08.07.2013 required to be set aside and is accordingly, set aside.
Resultantly the Notice of Motion No.427 of 2013 to stand allowed.
Consequently the decree dated 14.01.2013 would stand set aside. The
Summons for Judgment would stand restored to file. The Defendants
would file their affidavit in reply to the Summons for Judgment within six
weeks from day. The Trial Court would thereafter hear the said Summons
for Judgment expeditiously. It is made clear that the observations made in
the instant order are only for the purposes of consideration of the case of
the Defendant in their application filed under Order XXXVII Rule 4 of the
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Code of Civil Procedure. The Trial Court would consider the Summons for
Judgment on its own merits and in accordance with law. The amount i.e.
deposited in this Court in this Petition would continue to remain in this
Court and would be subject to the result of the suit. The learned Registrar
Judicial-I of this Court to invest the amount initially for a period of one
year, if not already invested in a Nationalized Bank and thereafter renew
the said deposit for such period or periods which he deems appropriate.
12.
The Petition is allowed to the aforesaid extent. Rule is accordingly,
made absolute in the aforesaid terms with parties to bear their respective
costs.
[R.M. SAVANT, J]
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