Madras High Court
Daejung Moparts Private Limited vs Crystal Marketing on 4 June, 2024
C.R.P.No.4057 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.06.2024
CORAM:
THE HONOURABLE Mr.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.4057 of 2023
and CMP.No.24796 of 2023
Daejung Moparts Private Limited
No.6, Sengundram Industrial Estate
Melrosapuram, S.P.Koil - 603 204
Tamil Nadu. ... Petitioner
Vs
Crystal Marketing
Registered Partnership Firm
Represented by its Partner
Mr.P.Raj N.Narayanan
S/o. Late Parameswaran Nair
Akhil Apartments, III Floor
108, Kamaraj Avenue, Adyar
Chennai - 600 020. ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution of
India praying to set aside the order dated 07.10.2023 passed in I.A.No.1 of
2023 in C.O.S.No.175 of 2023 on the file of the Commercial Court, Egmore,
Chennai.
1/7
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C.R.P.No.4057 of 2023
For Petitioner : Mr.Pranava Charan M.G
For Respondent : Mr.K.M.Aasim Shehzad
for M/s.Akhil Bhansali
ORDER
This revision revolves around a very narrow compass. The parties
would be referred to by their rank in the suit.
2.1 The respondent as plaintiff presented COS.No.175 of 2023 on the
file of the Commercial Court, Egmore, Chennai. This suit is for recovery of
money for the goods sold and delivered. The plaintiff-company made a
claim for Rs.79,72,368/-. It was filed as summary suit invoking the
provisions of Order XXXVII of CPC. Notice was issued in the suit for
calling upon the defendant to appear. The date was fixed on 27.07.2023. On
27.07.2023, the defendant entered appearance through a counsel and filed his
vakalath. The case stood adjourned to 01.09.2023. On 01.09.2023, a memo
was filed by the plaintiff stating that the defendant had not given a notice of
appearance, and therefore the provisions of Order XXXVII Rule 3(1) of CPC
has not been complied with.
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2.2 In response to this memo, notice of appearance was filed by the
learned counsel for defendant on 05.09.2023. He took out an application to
recall the order dated 01.9.2023, whereby the Court has recorded the fact that
the defendant had not filed the notice of appearance within the time limit, and
he also sought for rejection of memo filed by the plaintiff. This application
came to be dismissed, against which the present revision.
3. Heard Mr.Pranava Charan M.G. for the petitioner/defendant and
Mr.K.M.Aasim Shehzad for the respondent.
4. Mr.Pranava Charan refers to a judgment of the Delhi High Court in
Pal Jain and Ors. Vs Mulakh Raj, AIR 1987 Delhi 21. The said judgment
has been approved by Hon'ble Mr.Justice Jiwan Dass Kapoor in NEPA Ltd
Vs. Media Asia Pvt Ltd., AIR 2020 Delhi 128. A view had been taken by
that Court on Order XXXVII. It reads as follows:
"The notice of entering appearance may not have been
given separately but the very fact that presence of the
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counsel for the defendants as well as the counsel for
plaintiff is noticed in the order sheet, it show that the
plaintiff had the notice of entering appearance on behalf of
the defendants. The only fault which lay on the part of the
defendants was that they did not file separately the address
for service."
5. A perusal of this view would persuade me to conclude that on the
date of the first hearing when the defendant has entered appearance in the suit
through his counsel and has filed the vakalatnama which discloses the
address of service, a separate notice of appearance may not be necessary. If
the said principle is applied to the facts of this case, on 27.07.2023, when
counsel for both the parties were present, a vakalath had been filed disclosing
the address of the learned counsel for the defendant. Therefore, the plaintiff
should have seized of this opportunity and should have issued the summons
of judgment immediately thereafter. The procedural law under Order
XXXVIII is meant for quick disposal of the suit which comes within the
scope of that chapter. Unfortunately, as this procedural wrangles that has
been intervened, the Court is called upon to decide on procedural issues
instead of proceeding further with merits of the case.
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6. In the light of the above discussion, the revision is allowed and the
order passed by the Commercial Court, Chennai in I.A.No.1/2023 in
COS.No.175 of 2023 is set aside with the following directions :
i. The filing of vakalath on 27.07.2023 will be treated as notice of
appearance by the defendant to the plaintiff.
ii. The plaintiff will serve summons for judgment to the learned
counsel for the defendant on or before 12.06.2024.
iii. The defendant is granted ten (10) days time from the date on which
he received the summons for judgment, for him to take steps for
leave to defend. In case, if the defendant does not file an
application within the ten days time, his right will stand forfeited.
7. Mr.K.M.Aasim Shehzad would state that the defendant is a foreign
entity with no assets in India, and therefore, an order of attachment should be
passed as against the said defendant for having dragged on the proceedings.
On an enquiry, he would state that before the learned Presiding Officer of the
Commercial Court, the plaintiff had taken out an application for garnishee
and that application was dismissed as withdrawn.
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8. In the light of the changed circumstances, since the defendant has
not given the notice of appearance in the format as has been followed by this
Court, the plaintiff is granted liberty to move an application for attachment
before judgment or for furnishing of such security as may be necessary to
cover the suit claim. On filing such application, the Commercial Court shall
ensure that the same is disposed of within a period of 15 days from the date
of filing of the application.
9. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
04.06.2024
Index:Yes/No
Internet : Yes / No
Speaking order / Non-speaking order
ds
To:
1.The Judge
XX Assistant City Civil Court, Chennai.
2.The Section Officer
VR Section, High Court, Chennai.
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V.LAKSHMINARAYANAN,J.
ds
04.06.2024
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