Delhi District Court
M/S Icici Bank Ltd vs Bhim Singh on 7 August, 2015
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL03)
TIS HAZARI COURT / DELHI
M. No. : 22/2012 in suit No. No. 311/2011.
M/s ICICI Bank Ltd. ..... Plaintiff/Respondent
Vs. Bhim Singh ....Defendant/Petitioner 07.08.2015 ORDERS (On application moved under Order 9 Rule 13 CPC)
1. By this order, I will dispose of the misc. application dated Nil, filed on 13.07.2012 by the petitioner (J.D. in execution petition No. 17/2013 & the defendant in suit No. 311/11) moved under Order 9 Rule 13 r/w section 151 CPC, seeking setting aside of the judgment/decree dt. 19.05.2012 passed by the Ld. Predecessor of this Court.
M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 1 2
2. The brief facts in narrow compass, relevant and necessary for the disposal of this application, are that the appellant had approached the respondent for grant of vehicle loan of Rs. 6,65,000/, which stood duly disbursed on execution of loan documents, which he agreed to repay in 59 equal monthly installments of Rs. 15,628/ each, but miserably failed to adhere to the financial discipline, which called for filling of the suit for recovery for Rs. 6,50,088.63/ with pendentelite and future interest, which was subsequently decreed exparte vide Judgment/Order dated 19052012, and the present application is for setting aside the same.
3. In the application, it is averred that he did not appear on 10052012, when it stood adjourned for 19052012, and also that on that date, he could not appear as the date was not mentioned in the diary of his counsel when the court passed the decree, and further on 03072012, the defendant called the counsel to enquire about the matter, when he came to know M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 2 3 that the decree has been passed, and then he moved the present application, and thus, his absence was neither intentional nor deliberate.
4. In support of the application Sh. Mohd. Faizal, Ld. Counsel for the petitioner has submitted that for the fault of the counsel, the litigant should not suffer.
In support of his contentions, he has relied upon the law settled in the cases titled as:
i) Lal Devi & Ors. Vs. Vaneeta Jain & Ors decided on 14052007 in Civil Appeal No. 2494 of 2007 by the Hon'ble Supreme Court of India
ii) Amar Singh Vs. Raj Kumar decided on 23072012 in Civil Misc. Appeal No. 1031/2011 by the Hon'ble High Court of Rajashthan
5. Sh. Sachin Garg, Ld. Counsel for the respondent has vehemently countered the application, submitting that the application is hopelessly time barred, as it has been filed M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 3 4 beyond the stipulated period of 30 days from the date of decree, and that the summons were duly served to the appellant during trial of the suit, and on service of such summons, the appellant has caused his appearance through counsel Sh. A.P. Malik on 19022012, but since then neither the WS was filed nor any appearance was caused, and ultimately the court has passed the judgment/decree dated 19052012.
Also that there exits no reasonable ground or sufficient cause in the present application for setting aside the decree.
6. I have given my thoughtful considerations to the submissions made by the parties through their counsels in the light of the records placed before me.
7. As per the factual matrix of the instant case, the petitioner was duly served with the summons of the suit as defendant, One Sh. A.P. Malik, Ld. Counsel has appeared on his behalf on M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 4 5 08022012 and filed his Vakalatnama. Further order sheets dated 03022012, 19032012 and 10052012 do not show appearance of anyone for the petitioner, though, Ld. Counsel for the plaintiff was appearing on each and every date, even during the pendacy of the matter before the mediation cell.
On 19032012, before the court it was reported that the mediation talks had failed, but the petitioner did not file any WS within the mandate of Order 8 Rule 1 CPC, nor caused any appearances for 4 consecutive dates of hearing since 08022012. He has not tendered any plausible reason for his nonappearance in his application, except that he could not appear before mediation, as one of his relative was hospitalized and could not appear in the court on 19052012, as his counsel had not noted the date in his diary.
8. It is observed that on one hand, the contentions of the petitioner is that on 19052012, the case was not noted in the M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 5 6 diary of the counsel, but on the other hand he has submitted that he enquired about his case from his counsel on 03072012. Both the stands taken by the petitioner are contrary to each other, thus, stating that a litigant may not be suffer for the fault of counsel, does not fit well in the present case in facts & circumstances of this case as there is no averment as to why the petitioner did not appear during trial, on any of the dates of hearing or why he has opted not to participate the proceedings during trial even prior to 19052012 except that on 19052012, it is reasoned that the case was not mentioned in his lawyer's diary, but it is the petitioner's case that he enquired from his counsel only on 03072012, when he came to know that the decree has been passed.
Thus, the petitioner cannot take the support of 'knowledge' obtained only on 03072012, to seek the protection of limitation for invoking the horn of provisions of Order 9 Rule 13 CPC, for setting aside the exparte decree, nor he can seek the M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 6 7 protection of the fault of his lawyer, as it is his case that he did not appear before mediation nor appeared on 10052012 or 19052012.
Thus, even the observations made and judicial opinions expressed in cases:
i) Lal Devi & Ors. Vs. Vaneeta Jain & Ors decided on 14052007 in Civil Appeal No. 2494 of 2007 by the Hon'ble Supreme Court of India
ii) Amar Singh Vs. Raj Kumar decided on 23072012 in Civil Misc. Appeal No. 1031/2011 by the Hon'ble High Court of Rajashthan, are not of any help to him, as in his case, he could not even show the fault of the lawyer except that of the date of 19052012.
9. Now, the proposition of law as settled u/o. 9 Rule 13 CPC and the Article 123 of Limitation Act, 1963, for the purpose of limitation is looked into.
10. As per the proposition of law, the horns of Rule 13 of Order 9 CPC can be raised, for setting aside exparte decree against M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 7 8 the defendant by moving an application before the Court which passes the decree, or who is to execute and the Court, if satisfied, can make the orders setting aside such decree as against the petitioner upon such terms as to costs, payment or otherwise on the following satisfaction :
i). that the summons were not duly served or
ii). that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.
And as per proviso, a mandatory caution has been imposed on exercising such powers by the court directing that:
No Court shall set aside the decree passed exparte merely on the ground :
a). that there has been an irregularity in the service of summons
b). 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.
11. Also, for invoking of such provisions under Order 9 Rule 13 M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 8 9 CPC, the period of limitation as per Article 123 of the Limitation Act, 1963, provided is for 30 days
a). from the date of the decree ;
or
b). where the summons or notice was not duly served, when the applicant had knowledge of the decree.
12. Further, the Apex Court in case titled as Parimal Vs. Veena @ Bharti, cited as (2011) 2 SCC 545 has guided for application of these two provisions of law as under: "In order to determine the application under Order 9 Rule 13 CPC, the test that 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.
M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 9 10 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 straight jacket formula of universal application."
13. Also, it is a settled principle of law as settled in case titled as G.P. Srivastava VS. R.K. Raizada & Others, cited as (2000) 3 SCC 54, wherein the Apex Court has opined that, " Under Order 9 Rule 13 CPC an exparte 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 nonappearance of the defendant in the case on the date of hearing, the court has no power to set aside an exparte decree".
14. The legal propositions as per amended code of CPC has been discussed in a case titled as Sunil Poddar Vs. Union Bank of India, cited as AIR 2008 SC 1006, wherein it was observed that, M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 10 11 "The legal position under the amended code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether
(i) he had notice of the date of hearing of the suit; and
(ii) whether he had sufficient time to appear and answer the claim of the plaintiff.
Once these two conditions are satisfied, an exparte decree cannot be set aside even if it is established that there was irregularity in service of summons".
15. Now, on application of factual position of the case to the guiding principles of law as laid by the Hon'ble Apex Court, and also the settled legal propositions under order 9 Rule 13 CPC coupled with the provisions of law of limitation as enunciated in Article 123 of the Limitation Act, 1963, that provides the period of limitation for invoking the provisions under 9 rule 13 CPC for setting aside an exparte decree is for 30 days
a). from the date of the decree ;
or
b). where the summons or notice was not duly served, when the applicant had knowledge of the decree.
M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 11 12 it is observed that admittedly, the summons of the suit were duly served upon the petitioner (defendant in the suit), who has also caused the appearances in the court through his counsel Sh. A.P. Malik, who had filed his Vakalatnama duly signed by the petitioner (defendant) on 08022012, but had stopped appearing of his own, without showing any sufficient cause for nonappearance, until the date of judgment/decree dated 19.05.2012.
Thus, the provisions of limitation under Article 123 of the Limitation Act, 1963, applicable to the present case for the petitioner is clause (a) that provides the period of 30 days from the date of decree, and not clause (b) that provides 30 days from the date of knowledge of passing of the decree.
16. Also, the petitioner has failed to show that he was prevented to appear and contest the matter due to some cause that could be treated as sufficient and beyond his control. M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 12 13
17. Obviously, the period of limitation for invoking the horns of Order 9 Rule 13 CPC as prescribed under Article 123 of the Limitation Act is 30 days from the date of decree, in case of the petitioner who had sufficient notice of the dates of hearing in the suit, but did not file WS and stopped appearing since 08022012 onwards, despite he was given sufficient time & opportunities to appear and answer the claim of the plaintiff.
18. Thus, in view of the law settled in case titled as Sunil Poddar Vs. Union Bank of India, cited as AIR 2008 SC 1006, when these two conditions are satisfied, an exparte decree cannot be set aside, as it is duly established on record that the petitioner was duly served with the summons of the suit and there was no irregularity in the service of the summons. Thus, the protection sought on the basis of knowledge on 03072012 and seeking limitation of 30 days from such date is not available as the period of limitation of 30 days from the date, when the petitioner had knowledge of the decree was available only in the M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 13 14 circumstances where the summons or notice was not duly served upon the petitioner/defendant, in view of the provisions of Article 123 of the Limitation Act.
19. Thus, in the above noted facts and circumstances, the application dated Nil, filed on 13.07.2012, moved under Order 9 Rule 13 r/w section 151 CPC on behalf of the petitioner (defendant), is beyond the period of 30 days from the date of decree dated 19052012, is hopelessly time barred and also the same being devoid of any merits, stands dismissed. Misc. file along with main suit file be consigned to record room.
Announced in the open Court (Dr. Archana Sinha) on 07th day of August, 2015 Addl. District Judge (Central03) Tis Hazari Courts / Delhi 07.08.2015 M. No. : 22/2012 M/s ICICI Bank Ltd. Vs. Bhim Singh Page No. 14