Delhi High Court
Arun Maini vs Bharat Petroleum Corporation ... on 17 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 09.05.2014
Date of Decision: 17.10.2014
+ CM (M) No.664 of 2011
ARUN MAINI ...... Petitioner
Through: Mr. Vijay Tandon, Adv.
versus
BHARAT PETROLEUM CORPORATION LIMITED ..... Respondent
Through: Mr. Anil K. Batra, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This petition under Article 227 of the Constitution of India impugns an
order dated 21.09.2010 whereby the Trial Court dismissed the
petitioner's application under Order XXXVII, Rule 4 of CPC. The
petitioner had sought setting aside of the ex-parte decree, which was
passed on 30.09.2008 and to further grant him leave to defend the suit.
Brief facts
2. It was the case of the petitioner that the Court was misled by the
respondent and the decree was obtained by concealing facts and by
misrepresentation; that the decree obtained by fraud was a nullity before
law; that the respondent had concealed the pendency of suit no. 245/06
in the Court of Civil Judge, Gautam Budh Nagar, Uttar Pradesh (UP) on
the same subject matter as the present suit; that the Court had no
territorial jurisdiction to entertain the suit as the parties lived for gain at
Gautam Budh Nagar, UP and the cause of action arose in UP; that the
suit under Order XXXVII was not maintainable since it was in relation
to breach of contract and not only for the recovery of debt or liquidated
demand in money payable by him; that a suit claiming damages for
breach of contract would not be a summary suit, hence, unconditional
leave must be granted to him; that the Court had been misled regarding
the contract which was between a principal and its agent and not
between two independent parties; that the respondent had terminated the
contract on account of irregularities in dealing with third parties; that
breach of contract was beyond the scope of Order XXXVII, CPC; that in
fact the real dispute was in relation to closure of the petitioner's godown
by the NOIDA Authority which led to frequent site inspection by the
respondent so as to make out a case for termination of the contract; that
he could not enter appearance and apply for leave to defend since he was
not served with the summons which itself was sufficient for the setting
aside of the decree.
3. The aforesaid application was strongly contested by the respondent. It
was submitted that the petitioner had failed to make out a case of special
circumstances in his favour for the setting aside of the decree; that the
petitioner had stated incorrect facts in the said application; that the
application was nothing but an attempt to delay the recovery of the
decreetal amount and would defeat the very purpose of an Order
XXXVII, CPC suit; that the petitioner failed to demonstrate any special
circumstance which prevented him from entering appearance within 10
days after the summons was served on 17.09.2008 in accordance with
Rule 3(1) of Order XXXVII, CPC; that the petitioner had failed to make
out a case for the grant of leave to defend the suit, in case the decree was
set aside; that the petitioner had failed to make out a case in relation to
obtaining the decree by fraud; that suit pending before the Civil Judge
(Senior Division), Gautam Budh Nagar was for injunction in relation to
termination of the LPG Distributorship Agreement; that no interim
injunction had been granted in favour of the petitioner and the subject
matter of both the suits were different; that the Court had the jurisdiction
to entertain the suit since the contract was executed at New Delhi and by
virtue of Clause 42 of the agreement, the parties had agreed to submit to
the jurisdiction of Courts at Delhi; that the summary suit was filed in
terms of the contract wherein the petitioner undertook to pay money as
per the direction of the respondent; that upon termination of the contract,
the respondent made a liquidated demand for an amount of Rs.
11,83,245 vide demand letter dated 23.09.2005, therefore, the suit was
well within the ambit of Order XXXVII, CPC; that the petitioner was
found to be indulging in practices which was contrary to the terms of the
contract. It was finally submitted that since the petitioner failed to enter
appearance within the stipulated period of 10 days, despite service of
summons and the application had been filed only to delay the recovery
of the decreetal amount, the application for setting aside the decree was
liable to be dismissed with costs.
Impugned Order
4. The Trial Court was of the view that the petitioner's application was
without merit and the petitioner had failed to make out a prima facie case
for setting aside the decree. It was also of the view that the petitioner had
failed to show any special circumstance which prevented him from
entering appearance within 10 days before the Court after the summons
was served on 17.09.2008 in accordance with Rule 3(1) of Order
XXXVII, CPC. The Trial Court was further of the view that the
petitioner had failed to establish that the decree was obtained by
misleading the Court or on the basis of incorrect facts. It was also noted
that the subject matter of the suit pending before the Civil Judge, Gautam
Budh Nagar and the present suit were different. The Trial Court noted
that the Court had the jurisdiction to try the suit since the contract was
executed at Delhi and also in terms of the clear stipulation under Clause
42 of the contract. In view of the undertaking given by the petitioner and
also in view of the categorical liquidated demand for Rs. 11,83,245 made
by the respondent, the Trial Court held that the suit had rightly been
instituted under Order XXXVII, CPC. Consequently, the petitioner's
application for setting aside the decree was dismissed by the Trial Court.
Submissions before this Court
5. The learned counsel for the parties were heard. The learned counsel for
petitioner has made similar arguments as were made before the Trial
Court and has sought setting aside of the impugned order. On the other
hand, the learned counsel for the respondent has argued that the
impugned order is based upon law and has sought dismissal of the
present petition with costs.
Analysis
6. This Court has perused the record including the Trial Court record and is
of the view that the impugned order does not warrant the interference of
this Court in its supervisory jurisdiction. On perusal of the records, this
Court finds that the summons was duly served upon the petitioner by
registered post on 17.09.2008. Hence, the submission of the petitioner
that he was not served with the summons is incorrect and without merit.
The suit under Order XXXVII, CPC had to be decreed in favour of the
respondent since the petitioner failed to enter appearance and apply for
leave to defend within the stipulated period of 10 days. The petitioner
had failed to establish special circumstances; hence, the Trial Court was
correct in refusing to set aside the decree. The petitioner's plea that the
decree was obtained by fraud was rightly held to be without substance by
the Trial Court.
7. Furthermore, the petitioner's contention that the suit was for breach of
contract and would not fall within the ambit of Order XXXVII was
rightly held to be without substance. Rule 1(2)(b)(i) of Order XXXVII,
CPC makes it abundantly clear that suits in which the plaintiff seeks only
to recover a debt or liquidated demand in money payable by the
defendant, with or without interest, arising on a written contract would
fall under the said provision. The respondent had made a categorical
liquidated demand for Rs.11,83,245 vide letter dated 23.09.2005;
therefore, it was well within its rights to institute a suit under Order
XXXVII, CPC.
8. The contention of the petitioner that the Delhi Courts did not have the
territorial jurisdiction to entertain the suit was rightly held to be without
substance by the Trial Court. Admittedly, the contract was executed at
Delhi and the parties had expressly agreed to submit to the jurisdiction of
Courts at Delhi in terms of Clause 42 of the contract. Therefore, the
petitioner's submission that the Delhi Courts would not have the
territorial jurisdiction is unfounded.
9. In view of the aforesaid discussion, this Court finds no merit in the
present petition. The reasoning for and the conclusion arrived at in the
impugned order is a plausible view in law; it does not suffer from
material irregularity, illegality or any infirmity. This petition is frivolous
and is accordingly dismissed with costs of Rs. 20,000. The costs shall be
paid to the Delhi High Court Staff Welfare Fund within a period of four
weeks from today.
OCTOBER 17, 2014 NAJMI WAZIRI, J.
vmk
