Oriental Bank Of Commerce vs Shri Vinod Kumar
2009 Latest Caselaw 4312 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                        + RFA No. 489 of 1995


                                        Date of decision : 26.10.2009

IN THE MATTER OF :

ORIENTAL BANK OF COMMERCE                        ..... Appellant
                  Through: Mr. Balvinder Ralhan and
                  Mr.Harish Batra, Advocates

                   versus


SHRI VINOD KUMAR                                  ..... Respondent
                        Through: Nemo


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                 No

     2. To be referred to the Reporter or not?          No

     3. Whether the judgment should be
        reported in the Digest?                         No


HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment dated

29.4.1995 passed by the Trial Court in a suit for recovery of a sum of

Rs.4,62,208.53 paise filed by the appellant Bank, against the

respondent(defendant in the Court below), who was engaged by the

appellant Bank as its counsel to conduct a suit on its behalf against a

firm, by the name of M/s B.K.Jajodia & Anr.

2. The suit was partly decreed by the Trial Court to the extent

of upholding the claim of the appellant Bank to recover the

professional fee and miscellaneous expenses paid by the appellant

Bank to the respondent for conducting the suit on its behalf. Hence a

decree of Rs.746/- with pendente lite and future interest calculated @

17 ½% p.a. till realization was passed in favour of the appellant Bank.

Aggrieved with the said judgment, the appellant preferred the present

appeal.

3. Very briefly, the facts of the case are that in the year 1989,

the appellant Bank instituted a suit for recovery of a sum of

Rs.4,62,208.53 paise against the respondent. It was alleged by the

appellant bank that the respondent was engaged by it as an Advocate

for drafting, instituting and conducting a suit against Ms/ B.K.Jajodia &

Anr., for recovery of a sum of Rs. Rs.2,04,058.42 paise. The suit was

instituted in the year 1984 but the respondent did not prosecute the

same properly. As a result, the suit came to be dismissed in default

on 14.10.1985. However, the respondent did not intimate the

appellant Bank about the progress of the case and only upon

inspection of the case file by a newly engaged counsel on behalf of the

appellant Bank that it came to the knowledge of the latter that its suit

was dismissed for non-prosecution on 14.10.1985.

4. It is stated on behalf of the appellant that an application for

restoration of the suit was filed by it but was dismissed in November

1988. The order of dismissal has however not been placed on the

record. Thereafter, in May, 1989, the appellant Bank instituted the

suit for damages against the respondent on account of his negligence

in conducting the suit against M/s B.K.Jajodia, entrusted to him. As

noted above, the said suit was partly decreed vide judgment dated

29.4.1995.

5. Counsel for the appellant requests that the suit ought to be

remanded back to the Trial Court, for it to give reasons for passing the

impugned judgment. Even if such a request was to be considered

favourably, the availability of the trial court record is necessary. The

Registry has reported that the trial court record was weeded out on

16.6.2008. No paper book has been filed by the appellant. Vide

order dated 22.5.2009, the appellant was directed to file certified

copies of the pleadings and the impugned judgment. Certified copies

have not been filed. Instead, some photocopies of the plaint,

documents and the impugned judgment have been filed under an

index dated 31.7.2009. The evidence has not been filed on the ground

that the same is not available with the appellant in its records. Hence

the Court does not have the benefit of the evidence led by the

appellant in support of its case. As no other records are available and

none is present on behalf of the respondent despite service, this Court

has no other option but to decide the present appeal by referring to

and replying upon the documents filed by the appellant bank on

13.7.2009.

6. Much water has flown under the bridge ever since the

institution of the earlier suit. The earlier suit was instituted by the

appellant bank against M/s B.K.Jajodia in the year 1984. The said

suit was dismissed in default on 14.10.1985. A perusal of the records

shows that after issuing the letter dated 29.10.1985 to the

respondent, asking about the status of the case, there was no follow

up of the case by the appellant Bank who took three years to engage a

new counsel to file an application for restoration of the suit. The

application for restoration of the suit came to be filed in the year 1988.

The said application was rejected in November, 1988. The order of

dismissal has not been filed. Counsel for the appellant is unable to

furnish the reasons for dismissal of the application. There is nothing

on the record to establish that the appellant Bank took any steps

whatsoever to prefer an appeal against the order dismissing its

restoration application. On a query being raised, counsel for the

appellant Bank further states that no complaint was ever lodged by the

appellant Bank against the respondent for his unprofessional conduct,

by approaching the Bar Council of Delhi. The simple averment made

in para 11 of the plaint is that as the appellant could not file a fresh

suit against M/s B.K.Jajodia & Anr., the same being barred by

limitation, it was left with no alternative but to file a suit against the

respondent herein, to claim damages from him on account of his

negligence in prosecuting the suit.

7. The suit out of which the present appeal has arisen came to

be filed in May, 1989. The respondent/defendant did not enter

appearance in the suit proceedings despite service. He was proceeded

against ex parte on 24.5.1994. The impugned judgment came to be

passed on 29.4.1995. The present appeal against the impugned

judgment was filed by the appellant bank on 25.7.1995. The appeal

was admitted on 3.8.1995. The respondent has not appeared in the

present proceedings either. As noted above, no paper book has been

filed by the appellant till date. In the meantime, trial court record has

also been destroyed. Even the certified copies of the pleadings,

documents and evidence are not on the record. No useful purpose

would be served by remanding the matter back to the Trial Court.

Hence, the request for remanding the case back to the trial court at

this belated stage, in the absence of records, is declined.

8. The reasons for dismissal of the suit of the appellant Bank

find mention in para 3 of the impugned judgment, though not

inasmuch as detail as ought to have been mentioned. In para 3 of the

judgment, the Trial Court observed that there is no explanation on the

part of the appellant Bank for not taking prompt action after

13.8.1985, the last date on which the progress of the suit was

conveyed to the appellant Bank. Having regard to the facts and

circumstances of the case as noted above, and having perused the

documents filed by the appellant, this Court is of the opinion that the

blame for non-prosecution of the earlier suit preferred by the appellant

Bank against M/s B.K.Jajodia & Anr., does not lie at the door of the

respondent alone, but is to be shouldered by both, the appellant Bank

and the respondent. The complete absence of any explanation for the

inaction on the part of the appellant bank w.e.f. 29.10.1985, when a

letter was written to the respondent asking for the status of the case,

till Oct, 1988, when the restoration application came to be filed by the

appellant, clearly emerges from the record. Strangely enough, the

order of dismissal passed on the restoration application of the

appellant Bank has also not seen the light of the day. The Court is,

therefore, not aware of the reasons which weighed with the trial court

in rejecting the said application. Further, the appellant Bank did not

choose to file any appeal against the dismissal order, which was a

legal remedy available with it, but not availed of for reasons best

known to it. When the lackadaisical attitude of the respondent was to

the knowledge of the officers of the appellant Bank, which fact is

apparent from a perusal of their internal correspondence, then its

failure to check the status of its case with the respondent for a period

of three long years after, 29.10.1985, is not palatable. As a vigilant

litigant, the appellant Bank was under an equal obligation to prosecute

its case diligently by keeping in touch with its counsel and following up

the progress of its case, which it failed to do.

9. The Trial Court therefore decreed the suit for recovery

instituted by the appellant Bank, limited to recovery of process fee and

miscellaneous expenses paid to the respondent for conducting the suit

on its behalf. For the aforesaid reasons, this Court is not inclined to

interfere with the impugned judgment. The present appeal is therefore

dismissed with no orders as to costs.

                                                        (HIMA KOHLI)
OCTOBER 26, 2009                                          JUDGE
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