Punjab National Bank vs M/S Boc Properties Pvt. Ltd.
2009 Latest Caselaw 4432 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Date of Reserve: August 25, 2009
                                              Date of Order: November 03, 2009

+IA No.14092/2007 in CS(OS) 467/2007
%                                                          03.11.2009
     Punjab National Bank                           ...Plaintiff
     Through: Ms. Sangeeta Sonavi and Mr. Dhruv Mehta, Advocates

       Versus

       M/s BOC Properties Pvt. Ltd.                      ...Defendants
       Through: Mr. Harish Malhotra, Sr. Advocate with Mr. Rajinder Aggarwal,
       Advocates



       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       ORDER

1. By this order, I shall dispose of the application under Order 9 Rule 13

read with Section 151 of CPC preferred by the applicant/ defendant for setting

aside the decree dated 8th April, 1999 making the award dated 1st November

1996 as a rule of the Court.

2. Brief facts relevant for purpose of deciding this application are that the

award was filed in the Court by the learned arbitrator and the same was

registered as Suit No.2825A of 1996. Notice of award was sent to both the

parties by the Court. The notice sent to defendant came back unserved. As

the efforts to serve applicant/defendant through ordinary course failed, the

respondent was served through publication in "Times of India" Delhi edition.

Applicant/defendant was also served through affixation. After defendant was

CS(OS) 467/2007 Punjab National Bank vs. M/s BOC Properties Pvt. Ltd. Page 1 Of 5 served through publication and affixation, still defendant did not appear and

this Court vide order dated 8th April, 1999 made the award a rule of the Court

and passed a decree in terms of the award granting pendent lite and future

interest @ 10% per annum from the date of decree till realization. The

present application under Order 9 Rule 13 CPC was made by defendant on 7 th

May, 2003 wherein defendant took the plea that defendant learnt about the

decree when certain recovery proceedings were initiated by decree

holder/plaintiff and a notice was served by the Recovery Officer on defendant

for recovery of the amount. Defendant then inspected the record of recovery

officer, however, the related documents were not found by the

defendant/judgment debtor and then he made more efforts and again carried

out inspection and came to know that recovery proceedings were initiated on

the basis of an award which was made rule of the Court.

3. It is submitted by counsel for defendant/judgment debtor that

defendant never got notice of filing of award nor received notice through

publication and learnt about the award only because of recovery proceedings

initiated against the defendant/judgment debtor. The other averments made

by defendant in this application under Order 9 Rule 13 are not relevant as

they touch merits of the award. The present application is accompanied by

supporting affidavit of Mr. Anil who is one of the directors of the judgment

debtor company and has stated that he was conversant with the facts of the

case.

4. In reply to this application, it is submitted by non applicant/ plaintiff

/decree holder that the averments made by the applicant were false. The

recovery notice was issued by Debt Recovery Tribunal-I for a sum of

CS(OS) 467/2007 Punjab National Bank vs. M/s BOC Properties Pvt. Ltd. Page 2 Of 5 Rs.1,18,33,654/- being the decreetal amount due against the judgment

debtor/applicant under the decree. However, the applicant was aware of

passing of the award as well as of the decree passed by the Court, but the

applicant had been deliberately not appearing in the Court. The applicant was

given several opportunities by the learned arbitrator. Even before the

arbitrator, the conduct of the applicant had been of defiance and not to

appear. In the Court also applicant adopted the same attitude.

5. A perusal of application would show that the applicant has made vague

averments in respect of the fact as to when the applicant learnt about

passing of decree, when inspection of the Court record and record of DR-I was

done and when the applicant came to know about passing of award. However,

during arguments, the decree holder pointed out to the record of this Court

which showed that the applicant had been keeping a watch over the Court

proceedings. This Court decided this case on 8th April 1999 and soon

thereafter on 15th May 1999, advocate of judgment debtor made an

application for inspection of record which was allowed and the inspection was

carried out on 13th May 1999. The second inspection of record was carried out

by the applicant's counsel on 15th May 1999. It clearly shows that the

judgment debtor had been keeping track of the Court proceedings and

record. In the inspection application, the applicant /judgment debtor has

written that it was a decided case, decided on 8th April 1999. In view of this

application, it is apparent that the judgment debtor was very well aware of

passing of the decree by this Court even on 13th May 1999. The application

for setting aside this decree has been made on 7th May 2003 i.e. after four

years of the judgment debtor learning about passing of the decree. There is

no explanation given in the entire application as to why the applicant/

CS(OS) 467/2007 Punjab National Bank vs. M/s BOC Properties Pvt. Ltd. Page 3 Of 5 judgment debtor did not file the application for setting aside the decree

immediately after coming to know of passing of the decree against it. In fact

the applicant/judgment debtor had concealed this fact from the Court that the

judgment debtor inspected the Court file and learnt about passing of the

decree. The effort of applicant/judgment debtor all along had been to delay

the proceedings as long as possible and not to appear and then take false

excuses, which conduct is apparent from the following paragraph of the

award:

"Notice of the reference was issued to the parties. The Claimants appeared and filed their statement of claim on November 17, 1995. Notice was issued to the respondents for filing the written statement on 24.1.1996. Nobody appeared on their behalf. However, they sent a letter that they had not received the copy of the statement of claim. This fact was disputed by the learned counsel for the claimants. Still a fresh notice was issued to the respondents for 20.2.1996. They were intimated that in case of their absence they will be proceeded ex parte. Nobody appeared on behalf of respondents on 20.2.1996 inspite of service and consequently they were proceeded ex parte and the case was fixed for 13.3.1996 for ex parte evidence.

On 13.3.1996 Shri K.L. Arora, Managing Director of the respondents appeared and made an application for setting aside the ex parte proceedings. The ex-parte proceedings were set aside. Respondents were given another opportunity for filing the written statement within four weeks from the date of that order and the case was fixed for 6.5.1996. On that date also written statement was not filed and on their request the case was adjourned to 5.6.1996. On this date also written statement was not filed and adjournment was sought on the ground that their Managing Director had gone to Pondicherry for operation. Adjournment was allowed and the case was fixed for 3.7.1996.

On this date also no written statement was filed and adjournment was sought. It was vehemently opposed on behalf of the claimants. However, I allowed two days adjournment and fixed the case for 5.7.1996. On this date Shri K.L. Arora,

CS(OS) 467/2007 Punjab National Bank vs. M/s BOC Properties Pvt. Ltd. Page 4 Of 5 Managing Director of the respondents appeared but no written statement was filed. Four weeks time was allowed and the case was adjourned to 16.8.1996.

On 16.8.1996 nobody appeared on behalf of the respondents and they were proceeded ex parte."

6. I find that the applicant/judgment debtor/defendant has not come to

the Court with clean hands. Director of applicant company took a false plea

about learning of passing of the decree on receipt of notice from the

Recovery Officer DRT-I. I consider that the present application filed by

applicant is a frivolous one. The application is hereby dismissed with costs of

Rs.50,000/-.

November 03, 2009                                       SHIV NARAYAN DHINGRA J.
rd




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