Notice of Motion No. 1902 of 2012,Summary Suit No. 874 of 2012

15th July, 2013

Petitioner Counsel: Mr. SANDEEP PARIKH with Mr. MAYUR AGARWAL with Mr. AYAZ BILAWALA i/by M/s. BILAWALA
Respondent Counsel: Mr. TANMAYI GADRE a/with Mr. SUNIL GANGAN and Ms. KANISHKA MUTHUKUMAR i/by RMG LAW

Cases Cited:
2008 (5) Bom. C. R. 938 [Para 8]

JUDGMENT

JUDGMENT :- By this notice of motion, the defendant seeks condonation of delay of 164 days in taking out notice of motion and also seek that ex parte decree dated 15th September, 2010 passed by this Court be set aside.

2. The plaintiffs have filed the Summary Suit No. 874 of 2010 arising out of Invoices issued by the plaintiffs for organizing and conducting an event by the name of "Gitanjali Lifestyle Luxury Fest 2007" at the "Turf Club", Mahalaxmi, Mumbai between 22nd December, 2007 to 25th December, 2007. According to the plaintiffs, the defendants were liable to pay sum of Rs.10,78,053/- after adjustment of all part payments made by the plaintiffs including sum of Rs. 4,48,550/-.

3. It is the case of the plaintiffs that though Writ of Summons was served upon the defendants, no Vakalatnama was filed by the defendants.

4. The plaintiffs tendered affidavit of the Bailiff of Sheriff of Bombay affirmed on 9th June, 2010. This Court after considering the affidavit of Bailiff, passed an ex-parte decree on 15th September, 2010. It was observed that Summary Suit is maintainable under Order XXXVII of the Code of Civil Procedure, 1908 (the CPC for short) and there was no denial of liability nor was any dispute raised thereto. The defendants have taken out this notice of motion for condonation of delay and for setting aside the ex parte decree passed by this Court on the ground that the defendants were not served with any Writ of Summons. It is submitted that the defendants came to know for the first time about the decree passed by this Court when winding up notice came to be issued by the plaintiffs on 8th October, 2010. Vide letter dated 28th January, 2011 the defendants informed the plaintiff's Advocate that Writ of Summons was never served upon the defendants at any point of time and ex parte decree passed by this Court on 15th September, 2010 was not on merits.

5. Learned counsel appearing for the defendants invited my attention to the affidavit filed by the Bailiff and also Annexure-A to the said affidavit, in support of her submission that Writ of Summons was admittedly not served upon the defendant. My attention is invited to the rubber stamp affixed on the acknowledgment card which indicates that Gitanjali Gems Ltd. has received the said writ of summons. The learned counsel submits that in addition to the defendants there are other Companies operating from the same address having separate staff. It is submitted that no such Writ of Summons was received by the defendants at that time or subsequently.

6. On merits, it is submitted that matter was settled amicably and vide letter dated 5th April, 2008, the defendants have already paid a sum of Rs.25,38,248/- in full and final settlement to the plaintiffs. It is submitted that after more than three months the plaintiffs denied the said payment in full and final settlement and disputed authority of their peon and raised further demand. It is submitted that according to the defendants there was settlement arrived at between the plaintiffs and the defendant pursuance to which the payment of Rs.4,48,500/- was made by the defendants which was accepted by the plaintiffs. It is submitted that in view of these facts, question as to whether the said amount of Rs.4,48,500/- was paid in full and final settlement of the entire claim of the plaintiffs or not, and whether there was any accord and satisfaction of the claims made by the plaintiffs or not, is the matter which requires trial and thus the Summary Suit itself was not maintainable. It is submitted that the defendants have a good case on merits. The defendants have demonstrated special circumstances for setting ex parte decree passed against the defendants by this Court.

7. Learned counsel appearing for the plaintiffs, on the other hand, submits that it is not in dispute that the Writ of Summons was served at the registered office of the defendants. Learned counsel invited my attention to the annual report of Gitanjali Lifestyle Limited to demonstrate that the defendants were a subsidiary company of the said Gitanjali Gems Limited whose rubber stamp is affixed on the acknowledgment card, Annexure "A" to the affidavit filed by the bailiff. It is submitted that even in past some of the correspondence was though addressed to the defendants was received by the holding company in respect of which no dispute had been raised by the defendants.

8. Learned counsel also invited my attention to letter dated 23rd July, 2008, by which the plaintiffs had disputed authority of its peon to acknowledge settlement of accounts. The plaintiffs raised demand calling upon the defendants to pay the balance amount by addressing letters which were not replied by the defendants. My attention is also invited to the affidavit in support of the motion to demonstrate that even delay in taking out notice of motion has not been explained. Though, admittedly the defendants had received winding up notice as back as on 8th October, 2010 informing the defendants about ex-parte decree, notice of motion has been taken out after gross delay. Learned counsel placed reliance on the judgment of this Court in the case of 2008 (5) Bombay Cases Reporter 938 and in particular paragraph nos. 7,8,9,14, 18 and 19 which read thus :

"7. The above provisions of law clearly disclose that the Legislature has taken sufficient care to provide ample opportunities to a defendant in a Summary Suit to defend the claim against him and even in case of failure to take appropriate steps within the time stipulated thereunder, the defendant is afforded with an opportunity to satisfy the Court by disclosing sufficient cause for failure to do so within the time stipulated and seek leave of the Court to defend the suit. Even failure to enter an appearance can be condoned under the said provision of law, albeit for sufficient cause being shown. In the background of this provision made in Order 37 to enable the defendant to avail ample opportunity to defend the claim against him, while understanding the scope of the expression "under special circumstance" in Rule 4 of Order 37, which relates to the power of the Court to set aside the decree passed under the said order, can it be said that the provisions of Order 9, Rule 13 of the CPC are totally excluded from their application to such proceedings? Plain reading of Rule 7 of Order 37 may create an impression to that effect. However, proper reading thereof would disclose that though the said Rule 4 specifically requires special circumstances to be disclosed for setting aside the decree, it does not thereby totally exclude the application of the principle behind Rule 13 of Order 9 of the CPC to such proceedings. On the contrary, the very expression "special circumstances" read with the provision of Rule 7 of the said Order would disclose that the defendant approaching the Court to get the ex parte decree issued under Order 37 of the CPC set aside has to make out a clear case regarding sufficient cause for his non-appearance at the time such decree was passed including regarding his failure to enter an appearance as well as failure to apply for leave to defend the suit before passing of the ex parte decree. In addition to that, the defendant has also to disclose that he has a good case to defend on merits. It is only when all these facts are present and disclosed with necessary supporting materials, that the Court would be justified in exercising its discretion for setting aside the ex parte decree passed against the defendant under Order 37. Otherwise, the Legislature has no reason to use the expression "special circumstances" in Rule 4 of Order 37. The expression "special circumstances" cannot be construed to mean merely a good case to defend on merits. The Order 37, Rule 3 makes detail provisions in order to afford opportunity to the defendant not only to enter his appearance but also to disclose good defence for contesting the claim of the plaintiff. Once such opportunity is made specifically available under Rule 3 of Order 37, it cannot be said that the same facility is made available by use of the expression "special circumstances" under Rule 4 of Order 37. To accept the contention of the respondents in that regard would virtually amount to legislating upon Rule 4 that it is nothing but the repetition of the provision of law comprised under sub-rule (7) of Rule 3 of Order 37.

8. The Order 9, Rule 13 of the CPC specifically provides that when the defendant approaches the Court to set aside an ex parte decree in a regular suit, he has to satisfy the Court that either the summons was not duly served upon him or that he was prevented by sufficient cause from appearing when the suit was called out for hearing. It is pertinent to note that this provision has been made in addition to the provision of law comprised under Rule 7 of Order 9 whereby the defendant appearing on the adjourned date of hearing is permitted to assign good cause for previous non-appearance in the suit and to seek setting aside of the order to proceed ex parte. Similar is the provision in Order 37, Rule 3(7) which speaks about opportunity being made available to the defendant to satisfy the Court with sufficient cause for failure on the part of the defendant in entering the appearance or for applying for leave to defend. In other words, while in a regular suit the defendant seeking to set aside the ex parte decree is bound to disclose sufficient cause for non-appearance of the defendant when the suit was called out for hearing and decreed ex parte, in the case of Summary Suit it is not only the requirement of law that the defendant has to disclose sufficient cause for his failure to enter an appearance and apply for leave to defend the suit, but it is also necessary to make out availability of a good defence to the defendant in answer to the claim put forth by the plaintiff and that is the import of the expression "special circumstances" in Rule 4 of Order 37.

9. Bearing in mind the above provisions of law as is found in the CPC in relation to the procedure to be followed when the defendant approaches the Court for setting aside the ex parte decree in a Summary Suit, mere failure to file Vakalatnama or failure to enter an appearance, that itself cannot be said to be a special circumstance for setting aside the decree. It is not that every failure, including for the reason of being not vigilant, that would be sufficient to categorize the same as a special circumstance for setting aside the decree under Rule 4 of Order 37. Undoubtedly, bona fide lapse on the part of the party to be established from the facts as they have happened in a particular matter, could perhaps be a special circumstance in a given case to exercise power under Rule 4 of Order 37. Mere claim on the part of the defendant that due to oversight and being under tension of other litigation that there was failure to enter an appearance, can by no stretch of imagination be said to be a special circumstance to exercise power under Order 37, Rule 4 of the CPC. Bare perusal of the impugned order discloses that the learned single Judge in a most casual manner had held that failure on the part of the respondents to file Vakalatnama in the case in hand was sufficient to set aside the ex parte decree. With respect, we are unable to agree with the said view taken by the learned single Judge and, therefore, the impugned order cannot be sustained.

14. The affidavit in support of the notice of motion neither discloses what prevented the respondents from entering the appearance in the said suit nor it discloses what prevented the respondents from seeking leave to defend nor it discloses what prevented the respondents from taking steps in accordance with Order 37, Rule 3(7) of the CPC nor it discloses special circumstances to warrant exercise of powers under Rule 4 of Order 37 by the Court in relation to the ex parte decree passed on 20-2-2004. As already held above, mere lapse or failure to enter an appearance by itself can be no cause for exercise of powers under sub-rule (4). It is more so in view of the fact that even Rule 3(7) clearly requires the defendant to show sufficient cause when there is any delay on the part of the defendant in taking steps for entering his appearance or seeking leave to defend the suit. In the absence of any material in this regard, we find no case for remand of the matter to the learned single Judge for re-consideration of the notice of motion in the case in hand.

18. Attention was also sought to be drawn to the decision of the learned single Judge of this Court in Unilab Chemicals & Pharmaceuticals v. Smith Stanistreet Pharmaceuticals Ltd., reported in (1999) Vol.101(1) Bom.L.R. 878 and particularly to para 7 thereof. In fact, the para 7 merely refers to the contention which was sought to be raised on behalf of the Advocate for the plaintiff in the said suit. However, the learned single Judge therein has referred to a decision of another learned single Judge of this Court in the matter of Harshad Shah v. Bhor Industries Ltd., reported in 1998 (4) L.J. 334 wherein it was held that "Specific provision is made under Order XXXVII, Rule 4 CPC where under the defendant has to show the special circumstances for setting aside ex-parte decree passed in Summary Suit under Order XXXVII, CPC. To spell out special circumstances the defendant has to first satisfy the Court that there was not due service of Writ of Summons or Summons for Judgment or that he was prevented by sufficient cause from getting leave to defend and then secondly to show that he has good, substantial and/or meritorious defence in the suit. In the absence of satisfaction of first condition it may not be necessary to go into second condition at all."

We are in respectful agreement with the said finding of the learned single Judge. The power to set aside an ex parte decree cannot be exercised in a casual manner, more particularly when the statutory provision specifically requires the party to make out special circumstances for exercise of such powers.

19. It is then sought to be contended on behalf of the respondents that mere setting aside of the ex parte decree will not amount to dismissal of the suit and the plaintiff can still succeed in the suit if he is able to prove his claim. By setting aside an ex parte decree, only consequence that will follow is that execution of the decree would be postponed for some time but it will give opportunity to the defendant to defend the case. The contention is devoid of substance. Once the plaintiff is armed with the decree, his right to execute the decree cannot be denied but for special circumstances to be made out by the defendant for that purpose. The provision of law in that regard under Rule 4, Order 37 of the CPC is very clear. Besides, as far as the opportunity to defend the claim is concerned, there are enough safeguards provided under the statutory provision, as already observed above. The first such opportunity is available when the summons is served. The second opportunity is available under Rule 3(7) of Order 37 whereby the defendant in-spite of delay or failure on his part to take appropriate steps within the time frame can satisfy the Court and avail the opportunity to defend the suit. It is nobody's case that the respondents were denied such opportunity. If the respondents had failed to avail this opportunity, then they themselves to be blamed for their failure."

9. Placing reliance on this judgment, learned counsel submits that no case is made out by the defendant demonstrating any special circumstances. It is submitted that the defendant has also not satisfied this Court that the defendant was prevented to represent it in this Court for want of Writ of Summons.

10. In an application filed under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908, the defendants have to satisfy the Court that not only that the writ of summons or summons for judgment was not duly served upon the defendants but also has to demonstrate the special circumstances for setting aside ex-parte decree passed in a summary suit under Order XXXVII of the Code of Civil Procedure, 1908. Question that arise in this Notice of Motion is whether defendants have satisfied both the conditions setout under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908.

11. On perusal of the affidavit filed by the Bailiff, it is clear that the Bailiff has proceeded on the premise that on the acknowledgment card there was an endorsement made by the defendants. However, on perusal of the acknowledgment card, it is clear that Writ of Summons was received not by the defendants herein but by Gitanjali Gems Ltd. It may be true that Gitanjali Lifestyle Ltd is holding Company of the defendants. It is however, case of the defendants that though both the Companies were operating from the same address it was with separate set of staff and management. The defendants have also made its position clear about Writ of Summons not having been served on the defendants when winding up notice came to be issued by the plaintiffs. From perusal of the acknowledgment card, in my view, it is clear that Writ of Summons was not served upon the defendants and the defendants have made out a case for remaining absent or in not filing Vakalatnama in the Summary Suit filed by the plaintiffs.

12. Service of writ of summons on the holding company though at the same address that of the subsidiary company would not amount to service on the subsidiary company or vice-versa. As far as merits of the case is concerned, on perusal of the letter addressed by the defendants to the plaintiffs, in my prima facie view, defendants had forwarded cheque of Rs.4,48,500/- to the plaintiffs against the final settlement of all Invoices raised by the plaintiffs. It is not in dispute that the said cheque of Rs.4,48,500/- sent by the defendant along with letter dated 5th April, 2008 to the plaintiffs has been encashed. On perusal of the letter dated 23rd July,2008, which was sent by the plaintiffs after more than three months, it is clear that after encashing the cheque, plaintiffs have challenged the authority of the peon. It is alleged in the said letter that office peon had only acknowledged receipt of the cheque from the defendants and he had no authority to acknowledge settlement of the accounts. It is not the case of the plaintiffs that the plaintiffs returned the said cheque to the defendants and refused to accept the said amount in full and final settlement of the accounts. The defendants have also alleged oral settlement between the plaintiffs and defendants. Question that would arise for consideration of the Court would be whether there was any accord and satisfaction in respect of the claim made by the plaintiffs on receipt of the said cheque of Rs.4,48,500/- or not. In my prima facie view there is no substance in the allegations of the plaintiffs made in letter dated 23rd July, 2008 that the office peon who had acknowledged receipt of the cheque, had no authority. The cheque was enclosed to the said letter. It is not in dispute that the letter as well as cheque both were received by the plaintiffs.

13. In my view, the defendants have made out special circumstances and have also proved that they were prevented from sufficient cause to file Vakalatnama. Defendants have substantial defence in the suit. Defendants have made out a case for condonation of delay in filing this Notice of Motion. In my view, whether service of Writ of Summons has been served or not, has to be strictly ascertained by the Court before passing any ex parte decree. In my view, on perusal of the affidavit filed by the Bailiff from the office of Sheriff, it is clear that Writ of Summons was not served on the defendants. The plaintiffs ought to have brought the aforesaid facts to the notice of the Court while obtaining ex parte decree. Notice of motion is made absolute accordingly in terms of prayer (a) and (b). Suit is restored to file.

14. Prothonotary and Senior Master is directed to transfer the paper and proceedings of this suit to the City Civil Court.

15. No order as to costs.

Ordered accordingly.