Delhi High Court
Food Corporation Of India vs East International Ltd. on 6 August, 2001
Author: S K Kaul
Bench: D Gupta, S K Kaul
ORDER
Sanjay Kishan Kaul, J.
1. The appellant is aggrieved by the impugned order of the learned Single Judge dated 12.12.2000 dismissing the application of the appellant under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code)
2. The proceedings before the learned Single Judge arose out of dispute adjudicated between the parties by the Arbitrator who filed his Award dated 31st January, 1992 in the Court. Despite service of notice to appellant, no objections were filed nor did any one enter appearance on behalf of the appellant. It appears that in view of the service report being awaited another notice was sent on 18th January, 1995 which was also served on the appellant but neither any objections were filed nor did anyone enter appearance. In view of the aforesaid position the Award was made a Rule of the court and decree was passed in terms thereof vide order dated 15th December, 1995.
3. Learned counsel for the appellant has contended that the appellant came to know of the proceedings before the court only when it received a letter dated 7th May, 1997 from the respondent No. 1 intimating about the same. The appellant requested the counsel on 3rd June, 1997 to inspect the court record and intimate to them about the proceedings and the same was as such duly informed by the counsel on 23nd August, 1997. The application for setting aside the ex parte decree under Order 9 Rule 13 of the Code was filed on 21st July, 1998.
4. Learned counsel firstly advanced the same submission before us as was advanced before the learned Single Judge in respect of the fact that the notice about filing of the Award was misleading inasmuch as the Award was dated 31st January, 1992 while the notice erroneously stated the date of the Award as 22nd September, 1988. Be that as it may the fact remains that the file was inspected by learned counsel for the appellant on 22nd August, 1997 and at least from that date the appellant would have knowledge of the proceedings. The conduct of the appellant after this date is material for determining whether the appellant is entitled to the relief prayed for in the application for setting aside the ex parte decree.
5. Learned Single Judge has taken note of the fact that no effective steps were taken for almost the year till 21st July, 1998 to have the ex parte decree set aside and thus held that the appellant was not diligent in pursuing its case. Learned Single Judge observed that in view of the lack of diligence on part of the appellant the question whether an application under Order 9 Rule 13 of the Code is maintainable need not be gone into.
6. We have heard the learned counsel for the appellant and have gone through the record. The appellant has also filed an affidavit sworn by Sh. Dharam Singh, Assistant Manager of the appellant dated 9th March, 2001. The affidavit seeks to include even the facts not set up by the appellant in their application under Order 9 Rule 13 of the Code. We have also gone through this affidavit. Learned counsel for the appellant referred to this affidavit to show the conduct of the appellant after their counsel inspected the records on 22nd August, 1997. It is stated in the affidavit that the appellant was informed vide letter dated 23rd August, 1997 about the proceedings. The appellant Corporation thereafter is stated to have requested the counsel vide their letter dated 28th August, 1997 to apply for certified copy of the court summon in order to find out as to on whom was it served and to fix the responsibility thereof. The counsel stated to have made the necessary application on 30th August, 1997 and certified copy of the notice was received on 20th November, 1997 and thereafter same was sent to Import and Export Division of the Appellant Corporation on 26th November, 1997 which was received there on 27th November, 1997. It is further stated that it was then found that on 24.4.1994 one Mr. Abhinav Vasish, Advocate had appeared for Mr. Naveen Kumar, Advocate on behalf of the appellant. On 28th November, 1997 the Import and Export Division in the Head Quarters of the Appellant Corporation conducted investigation into the matter to find out as to how Mr. Abhinav Vasish, who had no authority from the appellant Corporation had represented it on 24th April, 1995. The Vigilance Division is stated to have submitted a report on 28.2.1998 stating that the person who had received the notice dated 18.1.1995 had returned the same because the same was incomplete and defective and that Mr. Abhinav Vasish, Advocate had not appeared on 24.4.1995. On the basis of the said report, appellant states that they had contacted their counsel vide letter dated 17th March, 1998 for his opinion on the next course of action and by letter dated 13.4.1998 the counsel was requested to inspect the record. The draft application is stated to have been prepared on 17.4.1998 which is stated to have been vetted and finally sent by counsel to the Appellant Corporation on 15.5.1998. Thereafter it is stated that the application was forwarded on 27.5.1998 to the office of Joint Manager (Port Operations) Gandhidham which was dealing with the case. Some files were not available for which some communications took place and reminders were sent and necessary affidavit was signed on 13.7.1998 and filed on 21.7.1998.
7. The first aspect is that the necessary facts were not averred in the application under Order 9 Rule 13 of the Code. Secondly once the appellant had come to know of the proceedings on 22.8.97, the aspect of holding vigilance enquiry had no co-relation with the process to set aside the ex parte proceedings. Both could have proceeded simultaneously. The matter did not even rest at that as even after the report of the Vigilance department was made available on 28.2.98, the file was sent apparently from one desk to the other. It is a case of gross negligence in follow up of the matter rather then of due diligence.
8. In our considered view the conduct of the appellant after having been found out about proceedings on 22.8.1997, would dis-entitle them to any relief. Not only that even after receipt of the vigilance enquiry on 28.2.1998, no expeditious steps were taken to move the application. Thus learned Single Judge rightly rejected the application of the appellant under Order 9 Rule 13 of the Code.
9. Before parting with this matter we deem it appropriate and fit to refer to the judgment of the Supreme Court in Union of India and others Vs. Manager M/s Jain and Associates 2001(1) Scale 635 where it was held that provisions of Order 9 Rule 13 of the Code would be applicable in proceedings initiated for making the Award rule of the Court. We have referred to this aspect in view of the learned Single Judge having left the question open and the matter being settled by the judgment of the Supreme Court.
10. We find no merit in the appeal. Appeal is dismissed leaving the parties to bear their own costs.
