M/S Alliance Petroleums Pvt. Ltd vs Yakia Marketing Services
2013 Latest Caselaw 4826 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                             F.A.O. No.229/2013

                                    Decided on : 22nd October, 2013


M/S ALLIANCE PETROLEUMS PVT. LTD                   ...... Appellant

                       Through:   Mr.Atul Kumar Sharma, Advocate.


                         Versus


YAKIA MARKETING SERVICES                           ...... Respondent

                       Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

FAO No.229/2013, CM No.8247/2013 (Stay) and CM No.8698/2013 (Directions)

1. The matter was heard yesterday and it was kept for today. Nobody

has appeared in the matter today.

2. This is an appeal filed by the appellant against the order dated

07.02.2013 by virtue of which the application of the appellant under

Order 9 Rule 13 CPC was dismissed on the ground that the appellant had

failed to show sufficient cause for his non appearance on 08.02.2012.

3. The learned counsel for the appellant, in the first instance

yesterday, had sought time to comply with the order dated 27.08.2013 to

deposit the decretal amount. The aforesaid order regarding deposit of

decretal amount was passed in order to see the bona fides of the appellant

& subject to such deposit, the operation of the impugned judgment was

stayed. The appellant has not deposited the amount and preferred to

address the arguments on merits of the appeal. It was contended by the

learned counsel for the appellant that the trial court ought to have allowed

the application of the appellant for setting aside the ex parte decree as the

counsel for the appellant could not appear on 08.02.2012 because of the

personal reasons for which he had chosen to file his personal affidavit. It

was also contended that there was another application filed by the

appellant for setting aside the ex parte decree which was filed on

30.10.2012 and that was erroneously rejected by the court on the ground

that it was barred by limitation.

4. I have carefully considered the submission and gone through the

record. Before dealing with the submissions urged by the learned counsel

for the appellant, it will be pertinent to give brief background of the case.

5. The brief background of the case becomes important because it

reflects on the bona fides of the appellant to show that he is a person who

is not trustworthy and wants to make averments with reckless impunity.

The appellant/company had agreed to sell for a total sum of ` 8 lakhs a

Mercedes Benz car, which was owned by it, to the respondent. The

appellant nos. 2 & 3 are the officials/officers of the appellant

no.1/company. Out of the said amount, `1 lakh was given to the

appellant/company by way of advance. The balance amount of ` 7 lakhs

was paid subsequently by way of three post dated cheques which were

encahsed and the possession of the car was also handed over to the

respondent. Later on, it transpired that despite assurances by the

appellants to the respondent that the vehicle was free from all

encumbrances, it was found that the vehicle was hypothecated with ABN

Amro Bank Ltd. The respondent approached the appellants and

requested them to get the hypothecation removed failing which to take

the vehicle back and return the money. The appellants took the vehicle

back but failed to return the money of `8 lakhs which resulted in filing of

a suit by the respondent for recovery of ` 8 lakhs along with interest at

the rate of 24% per annum. It was this suit which was contested by the

appellants by filing a written statement. During the pendency of the suit,

the counsel for the appellants Mr.Prabhjit Jauhar absented himself on

08.02.2012 as a consequence of which, the appellants were proceeded ex

parte and the matter was adjourned to some time in March, 2012. On the

next date of hearing, in the month of March, 2012 also there was no

appearance on behalf of the appellants and consequently the ex parte

evidence was recorded and a decree for a sum of ` 8 lakhs along with

interest was passed against the appellants on 02.04.2012. On 06.06.2012,

an application for setting aside the ex parte decree was filed by the

counsel for the appellants Mr.Prabhjit Jauhar under his signatures

wherein a plea was taken that he could not appear on 08.02.2012 on

account of bereavement in his family in the months of December, 2011

and January, 2012. It was stated by Mr.Prabhjit Jauhar that on this

account he had been taking dates in most of the matters through his junior

counsel, but in the instant case, the junior counsel had also left the

services of Mr. Jauhar and he had also failed to make an entry in the diary

as to the next date of hearing in the matter, because of which the matter

went unattended on 08.02.2012 and resultantly a ex parte decree was

passed against the appellants. While this application was pending, the

appellant/company changed the counsel and another application for

setting aside the ex parte decree dated 02.04.2012 was filed on

30.10.2012. In this second application for setting aside the ex parte

decree dated 02.04.2012, a plea was taken by the appellants that they

learnt about the ex parte decree only on 22.09.2012 when the bailiff had

arrived for the purpose of effecting the attachment in pursuance to the

orders of the executing court. This second application was held to be

barred by limitation by the trial court and in my view rightly so, reason

being that once an application for setting aside the ex parte decree dated

02.04.2012 had been filed by a previous counsel and the same was

pending, there could not be a second application for the same cause.

Therefore, no fault can be found with the rejection of the second

application seeking setting aside of the ex pate decree dated 02.04.2012.

In any case, the trial court has rightly held that the application for setting

aside the ex parte decree dated 02.04.2012 was barred by limitation on

account of the fact that the application for setting aside the ex parte

decree has to be filed within thirty days from the date of the decree or at

best within thirty days from the date of acquiring knowledge about the

decree having been passed. In the instant case, in the second application

seeking to set aside the ex parte decree dated 02.04.2012 itself, it is stated

that the appellant had learnt about the ex parte decree having been passed

on 22.09.2012. If that be so, the application ought to have been filed

within thirty days from the said date while as it has been filed beyond a

period of thirty days. Even otherwise, the appellant is deemed to have

knowledge about the decree having been passed on 06.06.2012 when the

first application for setting aside the ex parte decree was filed because the

knowledge of the counsel will be attributable to the knowledge of the

client. That being the position, the second application has to be treated as

barred by time in case the period of limitation is reckoned from either of

these two dates. This is with regard to the second application. So far as

the first application is concerned, the same does not evoke the sympathy

of the court for the simple reason that the application itself on the face of

it does not seem to be bona fide. The bona fides of the explanation given

by the counsel are suspect because the affidavit and the application itself

state that the counsel suffered bereavement in the months of December,

2011 and January, 2012. The bereavement was suffered by the counsel in

the month of December, 2011 and January, 2012 and it has been stated by

him that he had been taking adjournments in all the matters and the junior

counsel who was assisting him in taking the dates had also left the

services without entering the next date of hearing in the diary maintained

by the counsel. The bereavement had taken place much before the date

of hearing and consequently it could not be assumed that the counsel

could afford not to be appearing in the matters for such a long period of

time and even if the explanation given is taken to be correct, still it is

totally unbelievable that the counsel would not flip through the pages of

his diary on a regular basis to see as to whether the dates of the cases

which were attended to in his absence have been carried forward or not.

If this is the attitude of the counsel, then he is totally negligent and he

cannot be permitted to take advantage of his negligence. Similar is the

behaviour of appellant no.1. The appellant no.1 is a private limited

company and it cannot simply say that once the brief is handed over to

the counsel, it is responsibility is over whereas it is essentially the

responsibility of the client to remain in touch with the counsel and to find

out the developments in its case while as in the instant case, the

appellants have not shown due diligence in attending to the matter

assigned by them to their counsel nor have they shown as to what action

was initiated against the counsel pursuant to his negligent behaviour.

Therefore, the explanation which has been given by the counsel in the

first application seems to be a make-believe story or a manufactured

explanation which does not in any manner show that it constitutes

sufficient cause. I, therefore, feel that the trial court was absolutely right

in rejecting the application of the appellants filed under Order 9 Rule 13

CPC for setting aside the ex parte decree dated 02.04.2012. The bona

fides of the explanation also become suspect in the light of two important

facts. Firstly, the appellant/company had allegedly made a wrong

statement to the respondent while selling the vehicle in question that the

vehicle was free from all encumbrances while it was hypothecated with

the ABN Amro Bank and secondly, despite having been given an

opportunity to pay the decretal amount in order to examine the validity of

their plea, they have failed to deposit the said amount in the court. The

appellants have also not returned the amount to the respondent despite

having re-possessed the vehicle in question. All these facts cumulatively

show that the appellant/company and it is officers/officials are dishonest

and the court cannot come to the rescue of a person or a company whose

conduct is dishonest.

The accordingly the appeal is dismissed.

V.K. SHALI, J.

OCTOBER 22, 2013 dm