Bombay High Court
Madhu S. Gupta vs V.R. Pictures And 3 Ors on 14 December, 2017
Bench: G.S. Patel
Gaurang Doshi v Madhu S Gupta & Anr
951-nms456-15.doc
Atul
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 456 OF 2015
IN
SUIT NO. 1967 OF 2009
Madhu Sushil Gupta
of Bombay, Indian Inhabitant, carrying on
business in the firm name and style of M/s.
Photo Film Industries, as the sold
proprietress thereof at 42, Irish Park, JVPD
Scheme, Juhu, Mumbai 400 049 ... Plaintiff
~ versus ~
1. M/s VR Pictures, a firm carrying
on business at Jai Ambe Cooperative
Hsg. Soc., 101/102, 2nd Floor, Juhu
Versova Link Road, Near HDFC Bank,
Andheri (West), Mumbai 400 053
2. Gaurang Doshi, of Bombay
Indian Inhabitant, proprietor of
M/s VR Pictures having office at
Jai Ambe Cooperative Hsg. Soc.,
101/102, 2nd floor, Juhu Versova Link
Rd., Near HDFC Bank, Andheri
(West), Mumbai 400 053
3. Madhukant Vinod Doshi,
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of Mumbai, Indian Inhabitant, having
address at 78/10, Mehta Building, 2nd
Floor, Jain Society, Sion (West),
Mumbai.
4. Sonal Shah, of Mumbai, Indian
Inhabitant having address at 78/10,
Mehta Building, 2nd Floor, Jain
Society, Sion (West), Mumbai. ... Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr Karl Tamboly, i/b Ranjit & Co.
FOR DEFENDANTS NOS 1 Mr Nagendra S Dube.
AND 2 TO 4
(DEFENDANTS NOS. 2 TO
4, APPLICANTS)
CORAM : G.S.Patel, J.
DATED : 14th December 2017
ORAL JUDGMENT:
1. The application is under Order IX Rule 13 of the Code of
Civil Procedure, 1908 ("CPC") to recall an ex parte decree that I
passed on 7th March 2014. After I passed the decree, Defendants
Nos. 2 to 4 filed this Notice of Motion, on which an order was
passed on 8th May 2015 (Mrs RS Dalvi J) staying further execution;
and then on 21st December 2016, the ex parte decree was recalled
(KR Shriram J) on the basis that the Writ of Summons was not
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properly served. The packet were said to be have been returned with
the remark "unclaimed".
2. The order of KR Shriram J was carried in appeal and the
Division Bench (RM Sawant & SV Kotwal JJ) on 10th November
2017 observed that the question of delay had not been considered
while recalling the order. The Notice of Motion under Order IX
Rule 13 was, therefore, restored to file and remanded for hearing
afresh.
3. Today I have before me, therefore, a Notice of Motion to
recall the ex parte decree that I passed and there is a delay of 150
days, which Mr Tamboly for the Plaintiff says is wholly unexplained,
in filing the Notice of Motion.
4. I believe I must allow this Notice of Motion and I must allow
it immediately, condoning the delay in the process, not for reasons
of service or on the question of whether the return of a packet with
the remark 'unclaimed' is a good service or not. For, after the
packets were returned unclaimed they were served afresh by the
Bailiff by hand delivery on Defendant No. 2.
5. There is a more fundamental reason to recall the decree and
this has to do with the Bombay High Court (Original Side) Rules
and in particular Rule 90 which reads thus:
"R.90. Judgment for want of written statement.--
Application for judgment for want of Written Statement
shall be made by Notice of Motion, but no such Notice of
Motion shall be issued before the date on which the Writ of
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Summons is returnable. On the filing of an affidavit of
service of the Notice of Motion, the suit shall be set
down on the daily board for the purpose of such
application."
(Emphasis added)
6. This Rule evidently does not permit the passing of an ex parte
decree without a Notice of Motion being filed for a judgment for
want of a written statement. The provisions of the Code of Civil
Procedure 1908 will not apply.
7. There is a jurisprudential history to this. This is apparent
from the decision of a Division Bench of this court (RMS
Khandeparkar and PB Majmudar JJ) in Nikita Trading v Nirlon
Synthetics Fibres & Chemicals Ltd & Ors.1 There, an ex parte decree
was passed in a civil suit on the Original Side. The matter was
carried in appeal. By the time the appeal came up for final hearing,
the Supreme Court had delivered its decision in Iridium India
Telecom Ltd v Motorola Inc,2 saying that the Rules of this Court
framed under Clause 37 of the Letters Patent would prevail over the
provisions of the CPC where there is a conflict. The Division Bench
in Nikita Trading, therefore, set aside the ex parte decree.3
Therefore, on the Original Side of this court an ex parte decree
cannot be passed following the provisions of the CPC. It can only be
passed on a Motion under Rule 90.
1 Order dated 29th April 2008 in Appeal No. 1136 of 2002.
2 (2005) 2 SCC 145.
3 It is perhaps a delectable irony that both the ex parte decree in Nikita
Trading and the Supreme Court decision in Motorola were both rendered
by BN Srikrishna J.
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8. Consequently, so long as that Rule remains and is not either
deleted or amended, no ex parte decree on the Original Side is
possible except by filing a Notice of Motion for a judgment for want
of written statement.
9. The Division Bench in Nikita Trading said:
3. The impugned order is sought to be challenged on
various grounds, however, in our considered opinion, it is
not necessary to address to all those grounds. Suffice to
refer to only one ground which relates to failure on the part
of the Court to take into consideration the provisions of law
those are applicable in cases where the Defendant fails to
file the written statement inspite of service of summons
and when the matter High Court is placed before this
Court on Original Side. The Law on the point is well settled
by the decision of the Apex Court as well as of this Court
and we can conveniently refer to only three decisions. One
in the matter of Iridium India Telecom Ltd. vs. Motorola Inc.
reported in (2005) 2 SCC 145 of the Apex Court, and two
others of this Court to which one of us
(R.M.S.Khandeparkar, J.) had been the party and they were
in Tardeo Properties Pvt. Ltd. vs. Bank of Baroda reported in
2007 (5) BCR 557 and All India Central Bank Employees
Congress & Ors. vs. Central Bank of India reported in 2007
(5) BCR 835
4. This Court relying upon the Motorola's case in
Tardeo Properties matter (supra), had clearly held that
the provisions of Order VIII of the Code of Civil
Procedure are not applicable to the matters which arise
on the Original Side of this Court and the Court has to
follow in that regard the Original Side Rules. The same
view was reiterated in Central Bank of India's case (supra).
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In fact, the Delhi High Court in M/s.Printpak Machinery Ltd.,
New Delhi vs. M/s.Jay Kay Paper Congeters, New Delhi
reported in AIR 1979 Delhi 217 had held that the Original
Side Rules are not an amendment made or a provision
inserted in the Code of Civil Procedure and they always
existed as a separate body of Rules. Similarly Division
Bench of this Court in Shevaram Thadaram Jainsinghani vs.
Indian Oil Corporation Ltd. reported in 1968 Mh.L.J. 748, had
held that wherever rule has been made by the High
Court for the benefit of the procedure to be followed on
the Original Side, the provisions of the Code of Civil
Procedure would not apply and it was held that the
amended provision of Order VIII Rule 1 would not apply
to the Suits on the Original Side and such Suits will
continue to be governed by the Original Side Rules. The
said decision of the Division Bench was duly approved
by the Apex Court.
5. Considering the law as above being well settled,
plain reading of the above quoted order passed by the
learned Single Judge while disposing the Suit cannot be
sustained and is liable to be set-aside and matter is
required to be remanded for disposal of the Suit in
accordance with the provisions of law and considering the
Ruling of the Apex Court in Motorola's case (supra), the
Division Bench of this Court in Tardeo Properties' case
(supra) as well as Central Bank of India's case (supra).
(Emphasis added)
10. In Tardeo Properties Pvt Ltd v Bank of Baroda,4 the question
received a more elaborate analysis and discussion. There, a Division
Bench (RMS Khandeparkar and DG Karnik, JJ, per RMS
4 2007 (5) Bom CR 557.
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Khandeparkar J) held, albeit in the context of service of a writ of
summons:
9. The Rule 88 under Chapter VII deals with the matter
relating to the time for filing appearance or vakalatnama by
the defendant. The Clause (a) thereof provides that in suits
where the written statement is called for by the writ of
summons, the defendant shall file an appearance in person
or a vakalatnama, as the case may be, within twelve weeks
from the service of writ of summons. The Rule 90 provides
for judgment for want of written statement and it states
that an application for judgment for want of written
statement shall be made by notice of motion, but no
such notice of motion shall be issued before the date on
which the writ of summons is returnable. On the filing of
an affidavit of service of the notice of motion, the suit shall
be set down on the daily board for the purpose of such
application. The Rule 91 deals with the situation arising out
of default in filing the written statement and it provides that
if in a suit where there are more defendants than one, any
defendant shall have failed to file his written statement if
such be called for, within the time fixed in the writ of
summons, or any time extended by order, and the suit has
not been set down as undefended as against him, such
defendant shall not be allowed to appear and defend at the
trial except with the leave of the Court or the Judge in
chambers upon such terms as to the filing of his written
statement, giving discovery, and the payment of costs of
adjournment, as a condition precedent to leave to defend,
or otherwise, as the Court or Judge may order or upon
such other terms, if any, as the Judge may think proper.
10. Taking into consideration the decision of the
Division Bench in Motorola's case and plain reading of the
above referred Rules on the Original Side, it is apparent
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that in order to enable the defendant to file the written
statement, there has to be a writ of summons served upon
the defendant, specifying the period within which he can
file the written statement. Undoubtedly, such writ of
summons can be served upon the Advocate for the
defendant. Undoubtedly, the Advocate for the defendant
can certainly file his vakalatnama in the Court but by that
itself it would not lead to the conclusion that the defendant
is served with the writ of summons. Though the Rule 79
empowers the Advocate to accept the writ of summons on
behalf of the defendant, nevertheless, Rule 69 clearly
requires the writ of summons to be issued in a particular
Form and further Rule 88 specifically speaks of the
occasion to file the written statement only when the
defendant is called upon to do so by service of writ of
summons specifying the period within which the written
statement to be filed.
14. As regards Rule 5(2), plain reading thereof and the
reading of Rules 89 and 90 would reveal that the same is
totally inconsistent with the latter rules. While under
Order 8, Rule 5(2) failure to present the written
statement or pleadings would empower the Court
either to pronounce the judgment or require the
plaintiff to prove the case, in case of failure to file the
written statement on the Original Side, the Judge in the
chambers will have to issue direction to fix the suit on
board for disposal as an undefended suit, either on the
same day or any other day as he may deem fit. That
itself will not amount to saying that failure on the part
of the defendant to file the written statement would
empower the Court to dispose of the matter by
pronouncing judgment on the basis of the facts
contained in the plaint. On the contrary, in terms of
Rule 89 the Court will have to fix the matter for disposal
as an undefended suit. In other words, only option
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which would be available to the Court would be to ask
the plaintiff to prove the case before the
pronouncement of the judgment. In case the plaintiff
desires to get the suit disposed of based on the
averments made in the plaint, on account of failure on
the part of the defendant to file the written statement,
he is required to take out notice of motion in terms of
Rule 90 and the same will have to be dealt with
accordingly. In other words, the procedure which is
prescribed under Rule 5(2) of Order 8 is not similar to
the one as provided under Rules 89 and 90 of the
Original Side Rules. In fact, they are not consistent with
each other. As far as Rule 10, Order 8 of the CPC is
concerned, since the law on the point of non-applicability
of Order 8, Rule 1/Rule 2 to the proceedings on the Original
Side is well-settled by the decision in Motorola's case,
for the same reason Rule 10 cannot be made applicable
to such proceedings before the Original Side.
(Emphasis added)
11. I believe this puts it beyond the pale. Mr Tamboly submits
that such a decree, even if passed, is not a nullity, because there is
no inherent lack of jurisdiction. This is at the very least debatable,
for Motorola, Tardeo Properties and Nikita Trading all make it clear
that without a Notice of Motion the Court cannot pass such a
decree at all. Read together, these three decisions tell us in the most
unequivocal terms that on the Original Side of this court, given the
extant Rules, a Court cannot exercise jurisdiction under Order VIII
of the Code to pass an ex parte decree. That can only be done on a
Notice of Motion filed under Rule 90 of the OS Rules, and not
otherwise.
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12. Does Mr Tamboly's submission mean or imply that that such
a decree passed under the CPC by the High Court on its Original
Side, that is to say without a Notice of Motion under Rule 90 is a
mere 'irregularity'? If it is, then an irregularity is, by definition,
curable. Does this in turn mean that a Notice of Motion can be filed
now in 2017 to which the order of 7th March 2014 could be made to
apply? I do not think that is even remotely possible. If the only way
in which to pass an ex parte decree is on a Notice of Motion filed
under Rule 90, then it is self-evident that there must be first a
Notice of Motion seeking such an order and not one that can be
filed later. What the three judgments referred to earlier tell us is that
Rule 90 is exclusionary: it eliminates the applicability of the CPC
altogether in the matter of passing ex parte decrees. An ex parte
decree passed on the Original Side of the Bombay High Court
without a Motion under Rule 90, i.e., passed under the provisions of
the CPC, is entirely a nullity. It cannot be sustained. It lacks the
underlying the remit; that remit demands the filing of a Motion.
Without that Motion under Rule 90, no ex parte decree is possible. I
do not myself believe Rule 90 is at all any longer a salutary provision
or that it should be continued for a minute longer, but that is wholly
irrelevant. So long as that provision remains, this result must follow.
13. The ex parte decree of 7th March 2014 is recalled and set
aside.
14. It appears that by an order dated 21st December 2016 the
Defendants have been allowed to enter their written statement. Even
if that order has been set aside, the fact of the matter today is that
there is a written statement now on file. There is, therefore, no
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question any longer of the Plaintiff obtaining an ex parte decree or
putting such decree into execution. I agree with Mr Tamboly that in
a suit of 2009 there should not be further delay. I am however
unable to accept his submission that the Defendants should now be
asked to deposit some amount to secure the Plaintiffs' claim. The
reasons are two: first, that KR Shriram J in his order of 21st
December 2016 took a view that my ex parte decree was liable to be
recalled. On a remand in an appeal from that order I have not only
agreed that the decree requires to be recalled, but I have done so for,
with respect, reasons that I believe to be more fundamental than
were raised before KR Shriram J. I have, in the foregoing order, said
that such an ex parte decree could never have been passed at all in
view of the legal position on the subject.
15. The best that can be done, therefore, at this stage is to place
the suit for directions peremptorily but that will have to await the
framing of issues. That need not be delayed and I will therefore take
up the matter on 22nd December 2017 at 11.00 a.m. for framing
issues. I will issue necessary directions for trial and cross-
examination of the Plaintiffs' witnesses thereafter.
16. A copy of the Affidavit of Evidence and Affidavit of
documents will be given to the Advocates for the Defendants. I am
making it clear now that I will not accept a single adjournment
application on behalf of the Defendants hereafter.
17. The Notice of Motion is made absolute and disposed of in
these terms.
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18. There will be no order as to costs.
(G. S. PATEL, J)
14th December 2017
