M/S. Bihar Carrying Co. Pvt. Ltd. vs M/S. United India Insurance Co. ...
2014 Latest Caselaw 2145 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.489/2012

%                                                  30th April, 2014

M/S. BIHAR CARRYING CO. PVT. LTD.           ..... Appellant
                  Through: Mr. B.S. Chaudhary, Advocate.

                          Versus

M/S. UNITED INDIA INSURANCE CO. LTD. & ANR. ..... Respondents
                    Through: Mr. S. K. Ray, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This first appeal is filed under Order 43 Rule 1(d) of Code of

Civil Procedure, 1908 (CPC) impugning the judgment of the court below

dated 11.9.2012 by which the application filed by the appellant/defendant

under Order 9 Rule 13 CPC for setting aside the exparte judgment and

decree dated 10.12.2007 has been dismissed. By the exparte judgment dated

10.12.2007 against the appellant/defendant a money decree of Rs.4,30,555/-

alongwith interest @ 12% per annum simple was passed on account of loss

of the consignment by the appellant/defendant of Indian made foreign liquor

sent by the plaintiff no.2/respondent no.2 through the appellant/defendant.

FAO 489/2012                                                 Page 1 of 6
 2.           The claim was effectively under the Carriers Act, 1865 and

which provides that liability of a carrier is equal to an insurer except the

exceptions of act of God or act of enemy.          The law in this regard is

contained in the judgment of the Supreme Court in the case of Nath Bros.

Exim International Ltd. Vs. Best Roadways Ltd. (2000) 4 SCC 553 and

which holds that liability of a carrier is absolute under the Carriers Act, 1865

except for an act of God or an act of enemy.

3.           Admittedly, the appellant/defendant appeared in the suit

originally and filed its written statement. Issues were thereafter framed on

17.2.2005 and reframed on 9.9.2005 and case was listed for plaintiffs'

evidence. Subsequently, the case was listed on different dates and counsel

for the appellant/defendant appeared on 10.4.2006 and 19.4.2006 but did not

appear thereafter resulting in defendant's being proceeded exparte vide order

dated 25.10.2007. Exparte judgment and decree thereafter was passed on

10.12.2007. Since there was a delay in filing of the application under Order

9 Rule 13 CPC of about 115 days, an application under Section 5 of the

Limitation Act, 1963 was also filed. Both the applications i.e under Order 9

Rule 13 CPC and under Section 5 of the Limitation Act, 1963 have been

dismissed.

4.           In the application under Order 9 Rule 13 CPC, it was pleaded
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 that counsel for the appellant/defendant had left the profession in the month

of July, 2006 and had joined in service without informing the defendant and

consequently the defendant did not know the status of the case.          On the

assertion of the appellant/defendant that its erstwhile counsel had left the

profession and joined service, the court below notes that this is a totally false

statement because in the application no name of the Advocate was given and

subsequently when the written statement was perused it was found that the

defendant's Advocate was Ms. Manjeet Arya and she had not left practice

but continued to practice with her chamber in Patiala House Courts. The

Advocate for the respondents/plaintiffs has given a personal affidavit stating

that he had made personal enquiries and found that Ms. Manjeet Arya was

continuing practice. The case of the appellant/defendant that Ms. Manjeet

Arya had left practice was therefore disbelieved.

5.           The relevant observations made by the trial court are contained

in paras 9 and 10 of the exparte judgment and which read as under:-

     "9.     At the outset, I am constrained to mention that the
     application u/o 9 Rule 13 CPC as well as the application u/s 5
     Limitation Act, have been, generally, loosely and casually drafted,
     with no efforts having been made by the applicant/defendant to put
     forward any sufficient ground, leave alone any substantiated ground,
     while seeking setting aside of the judgment/ decree in question. The
     thrust of the application is on the assertion that the counsel for the
     defendant had left the active practice in July, 2006 and that she did
     not inform the applicant/defendant, due to which the suit was not
FAO 489/2012                                                    Page 3 of 6
     contested after 19.07.2006, resulting in the passing of the ex-parte
    decree. However, as pointed out by the non-applicant/plaintiff in the
    reply to the application, the applicant/defendant has not even
    bothered to give the name of the advocate, who had left the active
    practice and not informed the defendant about the same. If the
    record is to be perused, the Written Statement as well as the
    vakalatnama on behalf of the defendant was filed by Ms. Manjeet
    Arya and her complete address is mentioned in the vakalatnama and
    the Written Statement and as per the emphatic statement on behalf of
    the non-applicant/plaintiff, the said Ms. Manjeet Arya is still
    continuing in practice and continues to occupy the same chamber in
    Patiala House Courts, New Delhi. In fact, Sh. H.C. Goel, advocate
    for the plaintiff, has filed his affidavit in support of these assertions,
    stating therein that he had made personal inquiries and found that
    Ms. Manjeet Arya was still continuing in practice. This emphatic
    assertion on behalf of the counsel for the non-applicant/plaintiff, has
    not been refuted by the applicant/defendant by filing any rejoinder to
    the reply, with the result that there is no reason to doubt the assertion
    of the Ld. Counsel for the non-applicant/plaintiff.                   The
    defendant/applicant has not bothered to mention the name of any
    other counsel, who has been appointed by the defendant, to represent
    them and there being the vakalatnama of only Ms. Manjeet Arya on
    record, the contentions raised on behalf of the applicant/defendant do
    not have any force.

    10.     Further more, the applicant/defendant has again very vaguely
    asserted that the defendant had tried to contact his counsel but could
    not succeed but has not even bothered to give the dates and efforts,
    which were made by the defendant to contact the counsel, so as to
    establish its bonafides. Which representative came from Calcutta to
    Delhi and how he came to know that the matter has been disposed
    off ex-parte, has also not been detailed. The defendant, as already
    observed above, seems to have moved the application very casually
    and there appears to be a smell of making a mockery of the process
    of court. Similar is the case with the application u/s 5 Limitation
    Act, since the delay of 115 days, which has been caused, has not
    been explained day by day. It is not probable and therefore
    unbelievable that a company like the defendant, who is not even a
    chronic litigant, is likely to lose sight of its litigation, which perhaps
FAO 489/2012                                                   Page 4 of 6
      was a solitary one and not even have conversation with the counsel
     on or after every date of hearing. If the defendant/applicant was not
     in touch with its counsel regularly, the fault lies with the
     applicant/defendant and not with the counsel."


6.           Learned counsel for the appellant sought to place reliance upon

the judgment of Punjab and Haryana High Court in the case of M/s. N.K.

Electronics Vs. Narinder Kumar 2013 (4) Civil Court Cases 373 (P&H) of

a learned Single Judge to argue that non-appearance of Advocate and his

failure to communicate to the defendant of the defendant being proceeded ex

parte is sufficient to set aside the exparte judgment.      However, in my

opinion, the cited judgment will not apply to the facts of the present case

where the case pleaded by the appellant/defendant has been found to be

factually incorrect because Ms. Manjeet Arya, Advocate had not left practice

but was in fact continuing in practice.

7.           In view of the above, I do not find any merit in the appeal as

there is no illegality in the impugned judgment by which the application of

the appellant/defendant under Order 9 Rule 13 CPC was dismissed. Even if

the delay in filing the application was condoned there is no reason, in the

facts of the present case, for setting aside of the exparte proceedings against

the appellant/defendant and the ex parte judgment and decree.

8.           The appeal is therefore dismissed, leaving the parties to bear
FAO 489/2012                                                  Page 5 of 6
 their own costs.    The decretal amount deposited before the Registrar be

released alongwith accrued interest thereon to the respondents/plaintiffs

within a period of two weeks from today.




APRIL 30, 2014                             VALMIKI J. MEHTA, J.

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