Notice of Motion (L) No.1835 of 2014,Suit No.2350 of 2014

9th September 2014.

Petitioner Counsel: Mr. VIRAG TULZAPURKAR, Sr. Adv. a/w Mr. RAHUL DWARKADAS, Mr. K. BANERJEE, Mr. Y. CHOKSEY i/by WADIA GHANDI & CO.
Respondent Counsel: Mr. A. DELHIWALA, Adv. i/by JOY LEGAL CONSULTANTS

Cases Cited:
Parimal Vs. Veena Bharti, 2011(2) ALL MR 462 (S.C.)=2011 Law Suit (SC) 82 : 2011 (3) SCC 545 [Para 6,20,22]
S.P.Chengalvaraya Naidu Vs. Jagannath, 2014 ALL SCR (O.C.C.) 129=1993 Law Suit (SC) 908 : 1994(1) SCC 1 [Para 6]
National Insurance Company Limited Vs. Sujir Ganesh Nayak & Co., 1997 Law Suit (SC) 522 : 1997 (4) SCC 366 [Para 6,9]
M/s.Chander Kant & Co. Vs. The Vice Chairman DDA & Ors., Arb.Pet./246/2005, Dt.26/5/2009 [Para 9]
JSW Steel Ltd. Vs. AL Ghurair Iron & Steel LLC, 2015(2) ALL MR 60=Arb.Pet./398/2014, Dt.20/8/2014 [Para 9]

JUDGMENT

JUDGMENT :- The plaintiff is a private bank registered under the provisions of the Companies Act 1956. The defendant is a public sector insurance company engaged in the business of general insurance. Among the various insurance covers the defendants issue one such cover is Bankers Indemnity Insurance.

2. The defendants had issued one such Bankers Indemnity Insurance Policy to the plaintiff. Fraud was committed in the plaintiff's branch office situated at Ravipuram Desam Kochi, Kerala by its employee one T.M. Prajeeth who was the then Manager and in-charge of the extension counter of the said branch. The modus operandi adopted by the said T.M. Prajeeth was to debit, without authorization, the account of certain corporate customers of the plaintiff and utilize those amounts to make payment to certain stock exchange brokers for the settlement of the said employee T.M. Prajeeth's personal share transactions. After lodging FIR against the said T.M.Prajeeth, the plaintiff made a claim under the insurance policy from the defendant in the sum of Rs.1,01,03,000/-. The claim was lodged by the plaintiff on 30.10.2002. No action was taken by the defendant on the claim though some meetings and exchange of correspondence happened. The defendant finally rejected the plaintiff's claim under the Insurance Policy by letter dated 29.4.2006. The suit was filed on 10.4.2009, i.e., within 3 years from the rejection letter. Admittedly, the writ of summons was served upon the defendant on or about 29.10.2009. As no written statement was filed, by an order dated 17.6.2010 of the Prothonotary & Senior Master, the suit was transferred to the list of undefended suits. The suit got called out for ex-parte decree on 16.12.2013 and was stood over to 6.1.2014 at the request of the plaintiff to file affidavit of evidence and compilation of documents. On 20.1.2014, over 13 years after the claim was first lodged on the defendant, an ex-parte decree was passed in favour of the plaintiff against the defendant in terms of prayer clause-(a).

3. The present Notice of Motion is taken out by the defendant to set aside the ex-parte decree dated 20.1.2014.

4. It is also necessary to state that the office of the Sheriff of Mumbai had issued warrant of attachment of the defendant's assets and in view thereof, the defendant has also furnished a bank guarantee in favour of Prothonotary & Senior Master at the ad-interim stage to secure the plaintiff's claim in the sum of Rs.2,41,30,271/- with further interest @ 12% p.a. on the principal amount of Rs.1,01,03,000/- from 12.6.2014 till payment and/or realization. The bank guarantee is issued by Corporation Bank, Fort Branch on 28.8.2014 and is valid for one year with an undertaking to renew the bank guarantee from year to year until the disposal of this Notice of Motion and for a further period of six months thereafter.

5. The cause shown by the defendant for not filing the written statement defending the suit is very short. According to the defendant, when the writ of summons was served on 29.10.2009, as is then general practice followed by the defendant, once the writ of summons is received by the defendant's registered office, the same is forwarded to the concerned office which had issued the policy and the policy in the present case was issued by Mumbai Regional office-1 (MRO-1). It appears that the said writ of summons was misplaced and/or was not received by the Regional office of the defendant and hence Regional office could not take steps to file appearance and defend the suit.

6. Though to consider an application to set aside the ex-parte decree does not require going into the merits of the case, the counsel for the defendant also submitted that the claim of the plaintiff was time barred in as much as clause-12 of the terms and conditions of the policy required the plaintiff to file the suit within 12 calendar months from the date of rejection of the claim and if such claim has not been made subject matter of the suit in a court of law within 12 calendar months, the claim shall for all purposes be deemed to have been abandoned.

He also submitted that the risk was not covered and even if it was covered the cover was only for Rs.50 lakhs whereas the principal amount of the claim itself is in excess of Rs.1 crore.

He also submitted that the claim would also fall under the exceptions in the policy and the above 3 points have not been brought to the notice of the court. He submitted that the plaintiff has suppressed these facts from the court and on that ground itself the plaintiff should have been shown the door.

He also submitted that the fraud claimed happened over a period between 11.5.2001 to 1.10.2002 and as the plaintiff bank has quarterly audits, the bank should have detected during the audit that something was amiss. Moreover, the claim was that the accounts of corporate clients were being used for illegal transactions and certainly corporate clients would have brought the same to the notice of the plaintiff and the plaintiff's therefore should have found out about the fraud allegedly purported by the plaintiff's manager. He submitted that these facts are necessary to be considered in the matter and they have an excellent defence.

He also submitted that the courts should be liberal in granting application for setting aside an ex-parte decree. For this, he relied upon the judgment of the Apex Court in the matter of Parimal V/s. Veena Bharti 2011 Law Suit (SC) 82 = 2011 (3) SCC 545 : [2011(2) ALL MR 462 (S.C.)]. As the plaintiffs have not come with clean hands and disclose all the documents, ex-parte decree should be set aside. For this he relied upon the Apex Court's Judgment of S.P.Chengalvaraya Naidu Vs. Jagannath 1993 Law Suit (SC) 908 = 1994(1) SCC 1 : [2014 ALL SCR (O.C.C.) 129].

He submitted that under Order 9 Rule 13 of the Code of Civil Procedure, the defendant has to only show that he was prevented by any sufficient cause and sufficient cause is that the party had not acted in a negligent manner or there was want of bonafide on its part in view of the facts and circumstances of the case.

He also submitted relying on the Apex Court's Judgment in the case of National Insurance Company Limited Vs. Sujir Ganesh Nayak & Co. 1997 Law Suit (SC) 522 = 1997 (4) SCC 366 to submit that clause-12 in the policy which provides for 12 months outer limit to file a claim against the defendants was valid in law.

7. Per contra, Mr.Tulzapurkar counsel for the plaintiff submitted that the Notice of Motion was time barred. He submitted that under Article-123 of the schedule to the Limitation Act, the time provided to apply to set aside an ex-parte decree was 30 days from the date of decree since the defendants had been served the writ of summons. He submitted that 30 days period expired in February-2014 whereas the Notice of Motion has been taken out in August-2014 and no justification for extension of time or for condoning the delay has been made out in the Notice of Motion. He also submitted that under this application, the court has to only see whether a sufficient cause has been made out while setting aside the ex-parte decree and a court cannot and should not go into the merits of the case.

8. Mr. Tulzapurkar also submitted that the reason for not entering appearance and for filing written statement as claimed in the affidavit in support is that the defendant when it received the writ of summons, forwarded the same to MRO-1 but plaintiff's Advocates' letter dated 4.4.2014 was also received at the registered office but they acted immediately. He also submitted that no explanation has been put forth or sufficient cause is shown in the affidavit in support.

9. On the merits, without prejudice to his submissions that the court should not go into it for deciding this application, Mr.Tulzapurkar submitted that the defendant's reliance on the National Insurance Company Limited (supra) is misplaced since that was pre-amendment of Section 28 of the Contract Act. He submitted that in view of the amendment to the Contract Act that clause which states that if a suit is not filed within a particular period, the claim is deemed to have been waived, has been held to be void to that extent. He relied upon an unreported judgment of the Delhi High Court in the matter of M/s.Chander Kant & Co. v. The Vice Chairman DDA & Ors. Arbitration Petition No.246 of 2005 dated 26.5.2009 and an unreported judgment of our court in the matter of JSW Steel Ltd. Vs. AL Ghurair Iron & Steel LLC, Arbitration Petition No.398 of 2014 dated 20.8.2014 : [2015(2) ALL MR 60]. He also submitted that the risk covered under the policy also includes dishonesty, loss of money and on security sustained by risk of the dishonest or criminal act of the employee or the insured with respect to the loss of money and/or security wherever committed and whether committed singly or in connivance with others and that the same was committed in the premises of the plaintiff's branch and the plaintiff had paid additional premium of Rs.3,00,000/- and increased the amount insured to Rs.4 crores. He further submitted that none of the exceptions to the policy are applicable and in any event those exceptions are even mentioned in the repudiation letter of the defendant.

10. Before Mr.Tulzapurkar concluded, he submitted without prejudice to his earlier submissions, if the court was inclined to allow the Notice of Motion then the defendant should be permitted to withdraw the amount by directing the Prothonotary and Senior Master to encash the bank guarantee with liberty to secure the defendant's claim particularly in view of the fact that the plaintiff has a decree in their favour.

11. Before we proceed further, let us examine whether this application is within time. Article 123 in the Schedule to the Limitation Act, provides that an application to set aside an ex-parte decree, where writ of summons has been served, has to be filed in 30 days from the date of the decree. Certainly this has not been accomplished. But then should I condone the delay, if any, though there is no such prayer? In my view even if there is no such prayer, if the time lag between the date of decree and date of application is explained the court should not be pedantic about it. Now has the defendant so explained? I feel yes.

12. The counsel for the defendant submitted that the defendant came to know about the ex-parte decree dated 20.1.2014 only when they received the letter dated 4.4.2014 from the plaintiff's advocates, almost 2 & ½ months later. He could not have taken out the present application without all the pleadings and other proceedings in the matter. Immediately the defendant issued a letter of authority dated 15.4.2014 to their advocate and by a letter dated 29.4.2014 the defendant's Advocate applied to the Prothonotary & Senior Master to permit him to take inspection of the original court papers. The Advocate went to take inspection. He was informed by the inspection department that the said papers were not traceable and no updates regarding the movement of the papers between various departments have been found in the computer system and whereabouts of the original papers were not known. He therefore, applied once again to the Prothonotary & Senior Master by a search praecipe dated 11.6.2014, copy whereof was served upon the plaintiff's Advocates, requesting the Prothonotary & Senior Master to give inspection/search of the original papers.

13. On 11.6.2014 inspection was not granted because the concerned person was on leave but on 13.6.2014 the Advocate was informed that the papers were found and he could take inspection in the record department. Therefore, on 13.6.2014 after notice to the plaintiff's advocates, the Advocate of the defendant took inspection on 13.6.2014 at 12.00 noon when only some documents filed by the plaintiff were found but the affidavit of evidence was not found in the record. Therefore, once again defendant's Advocate made inquiry on 17.6.2014 and on 18.6.2014 he was informed that the plaint, affidavit of service etc. were still not traceable.

14. Thereafter by a letter dated 20.6.2014, the Advocate for defendant requested the plaintiff's Advocate to provide a copy of the entire compilation of documents pertaining to the said suit including the plaint, affidavit of service, summons, documents, evidence etc. In the said letter, the fact that the plaintiff's representatives were also present when the defendant's Advocate tried to take inspection of the record & proceedings is recorded. As there was no reply, the defendant's advocate sent another letter dated 30.6.2014 to the plaintiff's Advocate followed by another letter dated 2.7.2014. There was no response from the plaintiff's Advocate.

15. It appears that finally the documents were traced on or about 2.7.2014 and the Advocate for the defendant applied for certified copy of the record & proceedings on 9.7.2014. The defendant's Advocate received certified copy on 7.8.2014 and the present Notice of Motion was filed on 9.8.2014. It is indisputable that this application could not have been filed without receiving the papers.

16. With these explanations, I am satisfied that sufficient / good cause is shown explaining the delay, if any, and in the interest of justice the delay should be condoned.

17. Now moving forward, let us reproduce order IX Rule 13 of CPC which reads as under:-

"Setting aside decree ex-parte against defendant- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also :

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim]"

18. Therefore, the court shall set aside an ex-parte decree only when the defendant satisfies the court that (a) summons was not duly served or; (b) he was prevented by any sufficient cause for appearing when the suit was called for hearing.

19. At the same time the Code is also very particular to state that the court shall not set aside an ex-parte decree merely because there has been some irregularity in the service of summons, if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Therefore, even if the summons served was irregular, if the defendant had noticed the date of hearing and sufficient time to appear and answer the plaint, the court shall not set aside a decree passed ex-parte. Admittedly, writ of summons has been served and there is no grievance about the irregularity of service in the service of summons. Therefore, what we have to see is whether the defendant was prevented by any sufficient cause from appearing.

20. In the matter of Parimal V/s. Veena Bharti, [2011(2) ALL MR 462 (S.C.)] (supra) the Apex court has in paragraph nos.8, 9, 10, 11 & 12 has stated as under :-

8. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459).

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 81964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13 Code of Civil Procedure 1908, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application." (emphasis supplied)

21. Would I looking at the conduct of the defendant endorse that the defendant had acted diligently or remained active or show that they exercised reasonable standard of a cautious man or honestly and sincerely intended to remain present or did its best to do so or the defendant could not be blamed for its absence ? The answer to each of this is no.

22. As held by the Apex Court in Parimal Vs. Veena Bharti, [2011(2) ALL MR 462 (S.C.)] (supra) sufficient means adequate or enough and the same has to be viewed in the facts & circumstances existing in the case and duly examined from the view point of a reasonable standard of a cautious man. It also means that the party has not acted in negligent manner or there was want of bonafide on its part or the party cannot be alleged to have been not acting diligently or remaining inactive. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called out for hearing and did its best to do so. Sufficient cause as held by the Apex court is thus the cause of which the defendant could not be blamed for his absence and the applicant himself approached the court with a reasonable defence.

23. Let us examine the affidavit in support of the Notice of Motion to see whether the defendant has laid down a sufficient cause. The only cause shown is in paragraph nos.3 & 4 of the affidavit in support of one Jawahar S.Tonk, Regional Manager of the defendant dated 9.8.2014 which read as under :-

"3 I say that sometime in October 2009 the writ of summons was served upon the defendants at their Head office. I say that it is the general practice followed by the defendants that once a writ of summons is received by the defendant's office the same is forwarded to the concerned office which had issued the policy. In the present case the concerned office, which issued the policy was under MRO 1(Mumbai Regional Office-1) and accordingly the defendants forwarded the said writ of summons to the said office.

4 However, it appears that the said writ of summons was misplaced / lost in transit and was not received by the Regional office of the defendants. Therefore, the Regional Office could not file their appearance and consequently the written statement to oppose the said claim. I crave leave to refer to and rely upon the Inward Register of the Regional Office for the period 1st May 2009 to 31st December 2010 to show that the said Writ of Summons was not received by the Regional Office of the Defendants."

24. The defendant simply states that it was a general practice followed by the defendant that when a writ of summons is received they would forward it to the office that issued the policy and accordingly the defendant forwarded it. The defendant is also craving leave to refer to and rely upon the Inward Register of the Regional office viz. MRO-1 for the period 1.5.2009 to 31.12.2010 to show that the said writ of summons was not received. No such Inward Register was shown to the court during the hearing. Even if the inward register was shown, it would not be of much help as it would show no entry. What was required to be shown was that it was sent as averred in the affidavit. At the same time I am not saying just forwarding to MRO-1 would have sufficed. It is very necessary to observe that while the defendant craves leave to refer to and rely upon the Inward Register of MRO-1, there is not even a reference to or whisper about any Outward Register in the office where the writ of summons was served. Moreover, barring a bald statement of general practice nothing more is stated. The defendant is a public sector undertaking. Before such a general practice is adopted, it will not be incorrect to expect that they would have issued a circular. Further when such general practice of forwarding such an important document like a writ of summons from a High Court is adopted, there would be some inward entry of receipt or outward entry of dispatch. Even if there is no Outward Register there is no evidence whatsoever or explanation whether the writ of summons was placed before the higher ups or not. If MRO-1 could have an inward register certainly the registered office or the office that received the writ of summons will also have. If entry in the inward register of the registered office is made before the writ of summons was dispatched to MRO-1, it will not be too much to expect that there would be an outward register. There is no whisper about any of this in the affidavit. The Bailiff's affidavit states that the writ of summons was served upon one S.V. Sarvankar, Assistant from registry department of the defendant. In Exhibit-J to the affidavit in support also the defendant admit that the writ of summons was received by one S.V. Sarvankar, Assistant from registry department. No affidavit of said S.V. Sarvankar is filed to explain as to what he did after receipt of the writ of summons and that he forwarded the same to MRO-1. The affidavit also does not explain why the affidavit of S.V. Sarvankar could not be or is not filed. No explanation as to how it was sent to MRO-1 or whether said S.V. Sarvankar or anybody else follow up with MRO-1 as to whether they received the writ of summons or any action was being taken in connection with the suit. There is no explanation as to whether a noting was made in the registered office about the summons having been received and the same was forwarded to MRO-1. At one point, an emotional pitch was made by the counsel for the defendant that the defendant is a public sector undertaking so show some leniency. In my view, law is the same whether it is for public sector or private sector. On the contrary a public sector undertaking and its employees should be over cautious to a fault. What was received was a writ of summons from the High Court to answer a claim in excess of Rs.1 crore. They cannot be casual. The defendant, a public sector undertaking has been grossly negligent and has not acted diligently. The head office or registered office of the defendant has behaved in a most cavalier manner. The defendant has been unconcerned and casual.

25. Reading the affidavit in support and the explanation given by the defendant does not display any reasonable standard of a cautious man has been exercised. The explanation given does not show that the defendant acted diligently or remained active. The explanation given does not show that the defendant honestly and sincerely intended to remain present when the suit was called for hearing or did its best to do so. The defendant simply claim to have forwarded the writ of summons from the head office to MRO-1 and trying to show that the MRO-1 did not receive but there is no evidence to show that the defendant even forwarded the writ of summons to MRO-1.

26. In the circumstances, I am not satisfied that the defendant has shown any sufficient cause to set aside the ex-parte decree. Notice of Motion is dismissed with cost. The defendant to pay sum of Rs.50,000/- as costs to the plaintiff which cost also to be recovered, if not paid within two weeks, without interest together with and over and above the decretal amount.

Notice of motion dismissed.