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Subham Corporation Thro ... vs Gujarat Siddhi Cement

High Court Of Gujarat|20 September, 2013
This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 11.01.2013, passed by the learned City Civil and Sessions Court, Ahmedabad ( the Trial Court), in Civil Miscellaneous Application No.1346 of 2009, whereby, the said application filed by the petitioner for setting aside the exparte decree passed in Civil Suit No.7426 of 1991, dated 11.08.2008, has been rejected.
The brief facts of the case are that the respondent herein instituted the abovementioned civil suit for the recovery of an amount of Rs.20,18,885/-, with interest at the rate of 18% per annum against the petitioner proprietorship firm (defendant). Summons were issued and the petitioner remained present through its learned advocate. An application was filed for leave to defend, in pursuance of the summons for judgment, on 04.02.1993. The said application was conditionally allowed, as it was found that there was a triable issue. Leave to defend was granted on condition that the petitioner deposits an amount of Rs.1 lakh. The petitioner deposited the said amount and the suit was converted into a long cause suit. The suit came up for final hearing in the year 2007. The learned advocate for the petitioner informed the petitioner regarding this development by post. It is the case of the petitioner that the letter of the advocate was never delivered to the petitioner-firm, therefore, it had no knowledge regarding the final hearing of the suit. On 08.08.2007, the learned advocate for the petitioner filed a purshis for retirement from the case and, accordingly, he stood retired. Thereafter, in the absence of the evidence of the petitioner, the suit came to be partly-decreed for an amount of Rs.12,93,730/-, on 11.08.2008. According to the petitioner, when this fact came to its knowledge, it filed an application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 ( the Code ) for setting aside the exparte decree. The petitioner-firm asserted therein that the husband of its proprietor was ill and was hospitalised. That he had undergone an Angioplasty procedure and the business premises of the petitioner were closed. Due to this reason, the petitioner did not receive the intimation from its advocate. Moreover, due to severe financial crises, the Ahmedabad Municipal Corporation had sealed the business premises of the petitioner. The husband of the proprietor was running the business and the proprietor of the petitioner firm had no intimation regarding the case and was not in contact with the advocate. Moreover, she was busy looking after her ailing husband. After considering the said explanation, the Trial Court rejected the application by passing the impugned order. Aggrieved thereby, the petitioner has approached this Court.
Ms.Renu Singh, learned advocate for Mr.Y.N.Ravani, learned advocate for the petitioner, has strenuously argued that the proprietor of the petitioner firm, being a lady, was not looking after the business affairs of the firm and was not in contact with the learned advocate. She had no knowledge regarding the intimation sent by him. Her husband was hospitalised in June 2006 and an Angioplasty procedure was performed upon him. The business remained closed in the year 2006 and the shop was sealed by the AMC for more than 9 months. In the circumstances, the petitioner could not remain present before the Court during the proceedings of the civil suit. That the reasons and explanation advanced by the petitioner are genuine and bona fide and the exparte decree ought to have been set aside by the Trial Court, so as to grant the petitioner an opportunity to lead evidence. Further, the petitioner has shown sufficient cause for the condonation of delay which has not been considered by the Trial Court.
It is next submitted that the Trial Court had allowed the leave to defend application filed by the petitioner, finding that there were triable issues. The civil suit, itself, is not maintainable and by rejecting the application for setting aside the exparte decree, the Trial Court has caused grave injustice to the petitioner by depriving it of an opportunity to defend its case. Moreover, the impugned order passed by the Trial Court is erroneous, as interest at the rate of 12% has been granted to the respondent on a misreading of the provisions of Section 34 of the Code, even though the Trial Court has found there was no contact between the parties.
On the strength of the above submissions, it is prayed that interim relief be granted, the impugned order be quashed and set aside and the petition allowed.
In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments, that shall be discussed at the appropriate stage.
G.P.Srivastava v. R.K.Raizada And Others - (2000)3 SCC 54 (2) Bogidhola Tea and Trading Company Limited and Another v. Hira Lal Somani - (2007)14 SCC 606 (3) Parimal v. Veena - AIR 2011 SC 1150 The respondent has appeared upon instructions on Caveat through Ms.Dharmishta Raval, learned advocate for Mr.Nikunt K.Raval, who is on a sick-note today. She has strongly opposed the stand taken by the petitioner and has submitted that as per the case of the petitioner, the husband of the proprietor of the petitioner-firm was ill and hospitalised in the year 2006. All the medical papers annexed to the petition pertain to the year 2006, whereas the suit was decreed on 11.08.2008. There is no reasonable or cogent explanation for the petitioner not remaining present during the proceedings of the suit, as there was nothing to prevent it from doing so, had it been interested. That the learned advocate for the petitioner performed his duty and intimated the petitioner that the suit had come up for final hearing in the year 2007. When he did not receive any response or instructions from the petitioner, he filed a Purshis at Ex.21, and retired from the suit.
It is further submitted that there is no negligence on the part of the advocate but the petitioner, itself, has shown lack of interest in defending the suit. The reasons given in the application at Ex.19 are vague and general and no plausible explanation for the delay has been advanced. The Trial Court has taken into consideration the written statement filed by the petitioner and the entire material on record and has only partly-decreed the suit for Rs.12,93,730/- with interest at the rate of 12% per annum.
Learned counsel for the respondent/caveator has submitted that the transaction of the respondent with the petitioner is of the year 1988. The suit has been filed in the year 1991. The respondent/ plaintiff has not received even a single rupee from the petitioner, except for the amount of Rs.1 lakh, directed to be paid as a condition for filing the written statement. The Trial Court has considered all legal and factual aspects in a just and proper manner and has rightly rejected the application, as the petitioner has been negligent and has not shown sufficient cause or given any reasonable explanation for the delay.
On the above grounds, it is prayed that the petition be rejected.
In support of her submissions, learned counsel for the respondent has relied upon the following judgments:
Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. AIR 2011 SC 1199 (2) Union of India v. Nripen Sarma - AIR 2011 SC 1237 (3) Office of the Chief Post Master General v. Living Media India Ltd. - AIR 2012 SC 1506 (4) Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai - AIR 2012 SC 1629 (5) Samusunisha Begaum w/o Dr. Nasarullahkhan Dhaniani and Ors. v. Vishnukumar Ambelal Patel and Ors. - 2012(2) GLH 725 This Court has heard learned counsel for the respective parties at great length and detail and considered the material on record.
The undisputed facts of the case are as follows:
Civil Suit No.7426 of 1991 was instituted on 06.12.1991 by the respondent-plaintiff for recovery of Rs.20,18,885/-, with interest at the rate of 18% per annum. The transaction between the petitioner and the respondent pertains to the year 1988. Pursuant to the issuance of summons for judgment, the petitioner agreed through its learned advocate and filed an application for leave to defend on 04.02.1993. The said application was conditionally allowed upon deposit of an amount of Rs.1 Lakh, which was deposited by the petitioner and the suit was converted into a long cause suit. The suit came up for final hearing in the year 2007, and the learned advocate for the petitioner duly informed the petitioner regarding this development, by post. The petitioner neither responded to the said communication nor instructed its advocate, who retired from the case after submitting a Purshis. The suit came to be partly-decreed by judgment and decree dated 11.08.2008, for an amount of Rs.12,83,730/-, as against the claim of the petitioner for Rs.20,18,885/-. The application filed by the petitioner for setting aside the exparte decree has been rejected by the Trial Court by the impugned order, for reasons stated therein.
In the background of the above facts, the judgments relied upon by learned counsel for the respective parties may now be noticed.
In G.P.Srivastava v. R.K.Raizada And Others (supra), the Supreme Court has held as below:
7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree.
The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The sufficient cause for non appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.
(emphasis supplied) In light of the above principles of law, even if the words was prevented by any sufficient cause from appearing are liberally construed, it is clear from the explanation rendered by the petitioner that the husband of the proprietor of the petitioner-firm was taken ill in the year 2006. The medical documents annexed to the petition at Annexure-D collectively pertain to the months of March and April, 2006, only. Even the Angioplasty procedure that is stated to have been performed upon the husband of the proprietor pertains to this period of time. It may be noted that the suit came up for hearing in the year 2007 and the learned advocate for the petitioner-firm duly sent a communication in writing, informing the petitioner of this development. However, it appears that there was no response from the petitioner and as no instructions were given to the learned advocate, he had no option but to file a Purshis for retirement from the case, which came to be allowed. The suit was partly-decreed on 11.08.2008, that is, much later than the period of time during which the husband of the proprietor of the petitioner-firm was taken ill. The petitioner has produced a medical certificate from one Dr.Prakashvir Parikh, dated 03.10.2009, to certify that Mr.Sureshbhai K.Sajnani, husband of the proprietor of the petitioner-firm, was admitted at SAL Hospital on 30.03.2006 for Acute Inferior Wall MI and underwent Emergency Coronary Angiography and Angioplasty with stenting for the same on 30.03.2006. He was discharged on 03.04.2006 and advised rest for a few months. This certificate has been obtained much later, after the passing of the decree. Even if the same is considered, it shows that the husband of the proprietor of the petitioner-firm was admitted to the Hospital only for a period of five days. The period of rest advised to him was for a few months, and even if it is stretched to about three or four months, he would have been back to normal by August September, 2006. There is no valid excuse for not appearing in the matter or responding to the communications of the learned advocate in the year 2007, when the suit came up for final hearing. In the circumstances, the judgment in G.P.Srivastava v. R.K.Raizada And Others (supra), would not be applicable to the case of the petitioner.
The next judgment relied upon by learned counsel for the petitioner is Bogidhola Tea and Trading Company Limited and Another v. Hira Lal Somani (supra), wherein, the Supreme Court has held as below:
11. Ordinarily, we would not have interfered in such matter. However, it appears to be a gross case. The appellants before us have been able to show that the ex parte decree dated 19.4.1990 passed by the learned Additional District & Sessions Judge, Jorhat, ex facie suffers from non-application of mind. Had the learned Judge applied its mind even to the averments made in the plaint, he should have asked himself the question as to whether in absence of any acknowledgment in writing, as a result whereof the period of limitation would start running afresh, the suit could have been decreed. Section 3 of the Limitation Act, 1963 mandates that a court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. Although such a defence has not been raised, the statute obligated upon the court of law to consider as to whether a suit is barred by limitation or not. In the event it was found that the suit was barred by limitation, the court had no jurisdiction to pass a decree. It was, therefore, essential for the learned trial Judge to pose unto itself the right question, particularly when without adduction of oral evidence the pleading raised in the plaint could not be said to have been established. It was, therefore, not a case where the court could have invoked the provisions of Order 10 Rule 8 CPC. Even otherwise, the suit was set down for ex parte hearing. The learned trial Judge stated that only a prima facie case was found out from the plaint and other documents which were not sufficient for passing a decree as therefor the plaintiff was bound to prove his case.
In the present case, the impugned order does not disclose non-application of mind inasmuch as the defence put forward by the petitioner in the written statement has been taken into consideration. The Trial Court has, in the impugned order, observed that the City Civil Court had come to the conclusion that while passing the decree, only a dispute regarding interest remained. Rest of the business transactions were never questioned at any point of time by the petitioner in Civil Suit No.7426 of 1991. While decreeing the suit, the Court has taken sufficient care to grant interest. However, it did not grant the interest as claimed by the respondent. As the written statement filed by the petitioner has been taken into consideration, in that sense, the decree cannot be said to have been passed exparte. It has further been observed that the petitioner has failed to show sufficient cause for condonation of the delay. The impugned order does not reveal that it has been passed without application of mind. Therefore, the judgment in Bogidhola Tea and Trading Company Limited and Another v. Hira Lal Somani (supra), quoted by learned counsel for the petitioner would not be helpful in the context of the present factual matrix.
In Parimal v. Veena (supra), the Supreme Court has discussed what the expression sufficient cause would mean, in the following terms:
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", inasmuch 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) : (2010 AIR SCW 1788).
As stated by the Supreme Court, sufficient cause means that a party has not acted in a negligent manner or remained inactive. In the present case, the facts reveal that the petitioner has been negligent in taking care of the litigation and in spite of the intimations given by the learned advocate, has not appeared nor given instructions. The petitioner has, in the view of this Court, remained inactive and has not shown adequate reasons from the point of view of the reasonable and cautious person to explain its careless attitude towards the prosecution of the suit. The judgment in Parimal v. Veena (supra), would therefore not come to the aid of the petitioner in the factual matrix of the present case.
At this juncture, the judgments cited by learned counsel for the respondent may be noticed.
In Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. (supra), the Supreme Court has held as below:
26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.
Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
The principles of law enunciated in the above-quoted judgment would be applicable to the facts of the present case, wherein it is clearly discernible that there is no justification for the condition of the delay.
In Union of India v. Nripen Sarma (supra), the Supreme Court has held as under:
3. .....The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :
"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgment should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."
We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.
In Office of the Chief Post Master General v. Living Media India Ltd. (supra), after noticing the principles of law laid down in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (1987)2 SCC 107 : AIR 1987 SC 1353, and other judgments, the Supreme Court has held as below:
12. ....In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
Though the present case does not pertain to delay on the part of the State Government, but pertains to delay by a firm, the principles of law enunciated by the Supreme Court, to the effect that in the absence of plausible and acceptable explanations, the delay cannot be condoned, would be applicable to the present case.
The next judgment relied upon by learned advocate for the respondent is Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (supra). The Supreme Court has held as below:
18. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and /or its agencies /instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
The above judgment would apply in the facts of the present case wherein it transpires that the petitioner has been negligent in prosecuting its case. Therefore, the Court would not be justified in exercising discretion in its favour to condone the delay.
In Samusunisha Begaum w/o Dr. Nasarullahkhan Dhaniani and Ors. v. Vishnukumar Ambelal Patel and Ors. (supra), after discussing several judgments of the Supreme Court, this Court has held in Paragraph-25 that:
25. ....After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned....
Though the petitioner in the present case was defendant in the suit, the principles of law enunciated by this Court in the above-quoted judgment would be squarely applicable.
The facts of the case, as already discussed hereinabove, clearly reflect the careless and negligent attitude towards prosecuting the cause by the petitioner. The explanation for the delay as rendered by the petitioner in the application for condonation of delay is neither satisfactory nor sufficient. As per the said application, the petitioner states that nobody was sitting at the place of business during the period when the proprietor s husband was ill. The proprietor could not contact the advocate and vice versa. This explanation is rather vague and general and cannot be said to constitute sufficient cause to condone the delay.
The judgment and decree passed by the Civil Court shows due application of mind to the material on record, including the written statement filed by the petitioner. Insofar as the order below application at Ex.19 is concerned, it clearly reflects the factual and legal position and takes notice of the fact that nowhere in the application has the petitioner mentioned the length of the delay to be condoned in days, months or years. It is further observed by the learned Trial Court that the averments in the application are vague and general and the applicant has even failed to state on which date it came to know of the passing of the decree. The Trial Court has relied upon the judgment of the Supreme Court in the case of Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. (supra), while coming to the conclusion that the petitioner has not explained the delay sufficiently or with cogent reasons, therefore, a liberal approach cannot be adopted so as to defeat a substantive right of the other party. It has also been noticed by the Trial Court that as per the averments of the petitioner in the application, the business of the firm was closed in the year 2006 and Angioplasty was performed on the husband of the proprietor of the petitioner-firm during the same period of time. However, the Trial Court has found no cogent reason why the petitioner was prevented from prosecuting the proceedings of the suit thereafter. It has observed that it was the duty of the petitioner to inquire regarding the latest developments that took place in the proceedings and it is the litigant who has to approach the advocate whom he has engaged. In the present case, the petitioner has failed to show any interest in the proceedings. On the contrary, learned advocate has sent written communication to the petitioner that has not been responded to. The excuse given by the petitioner is that it was not received by it. However, the said excuse appears to be a mere eye-wash in order to set the record straight. The reasons given by the Trial Court in the impugned order are perfectly legal and valid and are based upon the judgment of the Supreme Court in Lanka Venkateswarlu (D) by L.R.s v. State of A.P. & Ors. (supra). There is no illegality or perversity in the impugned order so as to warrant the interference of this Court under its supervisory jurisdiction.
For the aforestated reasons, the petition deserves to be rejected. It is, accordingly rejected.
(SMT. ABHILASHA KUMARI, J.) sunil Page 29 of 29
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  • Abhilasha Kumari