Madras High Court
Tamilnadu Industrial Investment ... vs M/S.Drill Well Rigs on 11 January, 2022
O.S.A.(CAD) No.151 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A. (CAD) No.151 of 2021
Tamilnadu Industrial Investment Corporation,
rep. by its Branch Manager,
Special Recovery Branch,
No.692, Anna Salai, Nandanam,
Chennai – 600 035,
Now at HIG No.42,43, MGR Salai,
Maraimalainagar,
Chenglepet District. .. Appellant
Vs
1.M/s.Drill Well Rigs,
rep. by its Proprietor,
Annam – H-965, C3 24th Street,
Thirumoolar Colony,
Annanagar West,
Chennai – 600 040.
2.S.Sreedaran
3.K.Saroja .. Respondents
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Prayer: Appeal filed under Order XXXVI Rule 1 of the Original Side
Rules read with Section 13 of the Commercial Courts Act, 2015
against the order dated 29.01.2021 in O.P.No.646 of 2012.
For the Appellant : Mr.M.J.Jaseem Mohamed
JUDGMENT
(Delivered by the Hon'ble Acting Chief Justice)
By this appeal, a challenge was made to the order dated
29.01.2021 passed in O.P.No.646 of 2012, by which the Original
Petition preferred by the appellant Corporation for recovery of a sum
of Rs.47,36,737/- was dismissed.
2. The facts on record show that the appellant Corporation
preferred the Original Petition in the year 2012 for recovery of a sum
of Rs.47,36,737/- with interest from the respondents. The court
issued notice, but the the notice was not served on the respondents
in a period of nine years. The appellant Corporation was required to
take steps for service of notice on the respondents as the notice sent
to the respondents before filing the Original Petition was returned as
unserved. The appellant was required to find out the correct
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O.S.A.(CAD) No.151 of 2021
addresses of the respondents for service of notice. No effort was
made for years together and therefore, the court passed an order in
March, 2020 for paper publication of notice. The direction aforesaid
was also not carried out by the appellant Corporation and, therefore,
the Original Petition was dismissed after giving nine years to the
appellant for service of notice on the respondents.
3. The present appeal challenging the order dated 29.1.2021
has been filed without assigning any reason and justifying the default
for not giving the fresh and correct addresses of the respondents and
service of the notice. Thus, appeal has been preferred by the
appellant Corporation for the sake of it, otherwise delay in taking
steps by the appellant for service of notice is writ large.
4. Learned counsel for the appellant Corporation submits that
the paper publication could not be effected on account of the default
of the advocate without realizing that the paper publication of notice
is to be made by the Corporation by taking proper steps and not by
the advocate appearing on behalf of the Corporation.
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O.S.A.(CAD) No.151 of 2021
5. We deprecate the practice of the appellant Corporation to
take such defence. Rather, we do not find any default on the part of
the counsel who appeared on behalf of the Corporation, because even
while filing the appeal, the Corporation failed to find out the
addresses of the respondents as the notice to them returned
unserved. Despite of serious default in taking steps for service of
notice, no action was taken against the officer. The appeal was
preferred without assigning a justifiable ground for challenge of the
order.
6. The Managing Director of the appellant Corporation was
called for the reason aforesaid because despite a serious default on
the part of the officers concerned in getting the notice served by
securing fresh and correct addresses of the respondents and even
failure to get paper publication of notice, no action was taken against
the defaulting officer in a case involving more than Rs.47 lakh. The
Managing Director was asked as to why the action was not taken
against the defaulting officer when the default is apparent on the face
of record in not carrying out the direction for service of notice and,
that too, even by paper publication. The total period for this is of
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more than nine years.
7. At this stage, learned counsel for the appellant Corporation
informed that the file of the case was lying with the advocate and
whenever the officer of the appellant Corporation visited the office of
the advocate, it was found locked. The statement aforesaid has been
made without realizing that the appellant Corporation need to
maintain a parallel file of the court case and if it has not been
maintained, we can realize how the appellant Corporation is
conducting the court cases. The default attributed to the advocate
was made orally as there is no pleading in the appeal in that regard.
Thus, we do not find any ground so as to interfere with the order
impugned in the appeal. As the appellant Corporation failed to take
steps for service of notice on the respondents for a period of nine
years and even failed to carry out the direction for paper publication,
in our considered opinion, the learned Single Judge has rightly
dismissed the petition.
8. In view of the above, we dismiss the appeal, however, with
liberty to the appellant Corporation to take action against the
defaulting officer who failed to take steps for getting fresh and
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O.S.A.(CAD) No.151 of 2021
correct addresses of the respondents and service of notice. It is even
for their failure to get paper publication. The appellant Corporation, if
they wish, may take action and recover the entire amount from the
defaulting officer. There will be no order as to costs.
(M.N.B., ACJ.) (P.D.A., J.)
11.01.2022
Index : Yes/No
bbr
To:
The Branch Manager,
Tamilnadu Industrial Investment Corporation,
Special Recovery Branch,
No.692, Anna Salai, Nandanam, Chennai – 600 035,
Now at HIG No.42,43, MGR Salai,
Maraimalainagar, Chenglepet District.
Copy to:-
The Sub Assistant Registrar
Original Side
High Court, Madras.
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O.S.A.(CAD) No.151 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
bbr
O.S.A. (CAD) No.151 of 2021
11.01.2022
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