Gammon India Limited vs Ashok Jain
2013 Latest Caselaw 4088 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                      FAO Nos. 338/2012 & 339/2012

                                          Decided on : 11th September, 2013

GAMMON INDIA LIMITED                                  ...... Appellant

                               Through:    Mr.Ritesh Agarwal, Advocate.

                            Versus


ASHOK JAIN                                          ...... Respondents
                               Through: Mr.Anand Maheshwari and
                                       Mr.Navin Gupta, Advocates.

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

V.K. SHALI, J. (ORAL)

1. These are appeals against the order dated 20.04.2012 passed by the

learned ADJ in Civil Suit Nos.446/2010 and 449/2010 titled Ashok Jain

v. M/s Gammon India Limited & Anr. by virtue of which the applications

of the appellants/defendants under Order 9 Rule 13 CPC for setting aside

the ex parte judgment and decree dated 30.11.2011, were dismissed.

2. Briefly stated, the facts of the case are that the respondent/plaintiff

had filed two suits for recovery - Suit No.449/2010 for recovery of

`9,67,359 and Suit No.446/2010 for recovery of `11,81,732/-, against the

present appellants.

3. Notices in the suits were issued to the appellants/defendants and

one Mr.Jitender had appeared on 14.12.2010. On 13.01.2011, power of

attorney was filed on behalf of the appellants/defendants and they sought

time to file the written statement. The matter was adjourned to

14.02.2011. No written statement was filed and the matter stood

adjourned to 03.03.2011 when again the written statement was not filed

and last opportunity was granted to the appellants/defendants to file the

written statement subject to payment of cost of `2,000/-. The matter was

adjourned to 17.03.2011. But despite all these opportunities, the

appellants/defendants did not file the written statement and on

17.03.2011, it was stated by the counsel for the appellants/defendants that

they wanted to settle the matter with the respondent/plaintiff. As neither

the written statement was filed nor the settlement was arrived at between

the parties, on 11.05.2011, the appellants/defendants on account of being

absent, suffered an order to the effect that their right to file the written

statement was closed and they were proceeded ex parte. After this an ex

parte judgment and decree was passed against them on 30.11.2011. The

appellants thereafter filed applications under Order 9 Rule 13 r/w Section

151 CPC stating that the ex parte decree must be set aside as they had

come to know about the same only on 09.01.2012 when the counsel for

the respondent/plaintiff through their letter informed the appellants about

the ex parte decree having been passed against them whereupon an

inspection was done of the record and the applications for setting aside

the ex parte proceedings were filed on 17.01.2012. It is these

applications which were rejected by the learned trial court after calling

for the reply by holding that the appellants/defendants were grossly

negligent in pursuing the matter.

4. I have heard the learned counsel for the appellants as well as the

learned counsel for the respondent and gone through the record.

5. The contention of the learned counsel for the appellants is that the

non appearance of the appellants after having been served was totally

inadvertent and it was on account of the bona fide mistake as earlier the

matters were being handled by one Mr.Shehzad Alam Khan, Commercial

Officer of the appellants/defendants, who had resigned on 21.03.2011, as

a consequence of which the counsel appearing on behalf of the

appellants/defendants did not get instructions and the matters were left

unattended. It is stated that the applications for setting aside the ex parte

decree were moved immediately when the appellants received

information vide a notice/letter from the respondent/plaintiff about the

decree having been passed. It is accordingly stated that the appellants

may be permitted to participate in the proceedings after setting aside the

ex parte decree and permission may be granted to file the written

statement.

6. This plea has been vehemently opposed by the learned counsel for

the respondent/plaintiff.

7. The Order 9 Rule 13 CPC sets out two contingencies in which an

ex parte judgment and decree can be set aside. These conditions are - 1)

when a party is not served or 2) where the party has been served, but has

been prevented by 'sufficient cause' from appearing in the matter. In the

instant case, admittedly it is not the case of the appellants/ defendants that

they have not been served. The case which has been set up by the

appellants is that they could not appear on account of the bona fide

mistake.

8. I feel that this plea of bona fide mistake on the part of the

appellants does not meet the requirements of the second contingency of

showing 'sufficient cause'. 'Sufficient cause' has been interpreted by the

courts as a cause which is beyond the human control. Admittedly, in the

instant case, after the service, the appellants were represented by a

counsel and they had deputed a Commercial Officer and even if, the

Commercial Officer had resigned, the counsel for the

appellants/defendants ought to have appeared in the matters or if he was

not getting any instructions, he ought to have written letters to the

appellants/defendants forewarning them that in case he does not receive

instructions, he will not be in a position to appear in the matters. Nothing

of this sort has been urged or shown to this court.

9. Even if it is assumed that Mr.Shehzad Alam Khan, the Commercial

Officer, had resigned, that will not help the appellants because admittedly

the appellants are a well known construction company and must be

having a regular legal department to attend to various other legal matters,

which must be overseeing the legal functioning of the company.

Therefore, it could not be said that the appellants/defendants were totally

dependent on one person for the purpose of pursuing their legal matters.

It seems that the appellants/defendants were hoping to disappear

conveniently by thinking that once they disappear, the court will not be in

a position to pass a decree. Even the applications which have been filed

by the appellants for setting aside the ex parte decree do not contain the

averments to the effect that the reason for non appearance was of such a

nature which would constitute 'sufficient cause'.

10. A well known dictum is that the law does not help those who are

derelict in the discharge of their duties. I feel that, in the instant case, the

appellants have not been able to show that they were prevented by any

sufficient cause to appear in court. They were rather negligent in

following the case. Their applications for setting aside the ex parte

decree have been rightly rejected by the learned trial court. In my

considered view, the appeals are without any merit and the same are

accordingly dismissed. The 50% of the decretal amount which has been

deposited by the appellants shall be at the disposal of the executing court

which may pass such orders as may be deemed fit.

V.K. SHALI, J.

SEPTEMBER 11, 2013 dm