Andhra HC (Pre-Telangana)
Airport Authority Of India vs Jagadamba Pearls Dealer on 8 September, 2003
Equivalent citations: 2004(4)ALD39
ORDER B. Prakash Rao, J.
1. The petitioner is the defendant, who seeks to assail the orders passed in I.A. No. 726 of 2001 in I.A. No. 1969 of 2001 in O.S. No. 1593 of 1999 on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad dismissing an application filed under Section 5 of the Limitation Act seeking condonation of delay of 214 days in filing the application to set aside the ex parte decree dated 21.8.2000 in the suit.
2. The petitioner is Airport Authority of India against whom the suit has been filed by the respondent herein for recovery of amounts. However, due to the petitioner's non-appearance in spite of service of summons, it was set ex parte on 20,8.2000 and ultimately the ex parte decree was passed on the next day i.e., on 21.8.2000. The case of the petitioner in brief is that the summons were wrongly addressed to the Senior Manager instead of the Airport Director (competent authority); that the served summons in the name of Senior Manager were misplaced. The said Director was on leave from 1.8.2000 to 3.9.2000 due to his daughter's marriage and later he was transferred to Pune. The new Director joined on 8.11.2000 and therefore the delay occurred and hence the delay may be condoned and the ex parte decree may be set aside to give an opportunity to contest the matter on merits.
3. Contesting the application, it is submitted by the respondent that in spite of service of summons, which is not disputed, there are clear laches on the part of the petitioner and therefore no indulgence need be shown. There is thus no explanation forthcoming on behalf of the petitioner to constitute sufficient reason for condonation of delay and hence the application is liable to be dismissed.
4. The Court below taking into consideration the submissions made on either side dismissed the application holding that there is no acceptable proper explanation for the delay and there are clear laches on the part of the petitioner.
5. In this revision petition, Sri M. Vijay Kumar, the learned Counsel for the petitioner submits that the entire proceedings have been processed in a very hurried manner and that notice was served on the Senior Manager whereas the petitioner is a statutory body and therefore it has to be represented by an appropriate person named therein rather than by any other officer. Therefore, there is no due representation of the petitioner and thus there is no proper service of summons.
6. Sri C.P. Sarathi, the learned Senior Counsel representing the respondents submits that there is a clear negligence on the part of the petitioner in spite of service of summons and for the laches on the part of the petitioner the respondent cannot be made to suffer, and the decree has been executed and the petitioner has already paid the money.
7. Considering the submissions made on either side and on perusing the record, the question for consideration is, whether there are any valid grounds for condonation of delay.
8. There is no dispute that the summons were served on the petitioner through Senior Manager on 4.8.2000 and there was no appearance on behalf of the petitioner and therefore the petitioner was set ex parte on 20.8.2000. However, on the next day i.e., on 21.8.2000 the ex parte decree was passed. The case of the petitioner is that the Director was on leave from 1.8.2000 to 3.9.2000 due to his daughter's marriage and thereafter he was transferred to Pune and the new Director joined on 8.11.2000 and the summons were misplaced, hence there could not be appearance. In this regard, the petitioner an Authority is a statutory body constituted under the Airports Authority of India Act, 1994. The relevant provision Section 3 of the said Act reads as follows:
3. Constitution and incorporation of the Authority :--(1) With effect from the appointed day the Central Government shall by notification in the official gazette, constitute an authority to be called the Airports Authority of India.
(2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire hold and dispose of property both movable and immovable and to contract and shall by the said name sue and be sued.
(3) The authority shall consist of--
(a) a Chairperson to be appointed by the Central Government;
(b) The Director General of Civil Aviation or an officer not below the rank of the Deputy Director General of Civil Aviation to be appointed by the Central Government, ex-officio;
(c) Not less than eight and not more than fourteen members to be appointed by the Central Government."
9. From the above, it is clear that the petitioner is a body corporate having perpetual succession and can sue and be sued and contemplates that it is to be represented by a Chairperson and the Director General. No other officer or a Senior Manager can represent such an authority in any capacity as such. An officer to represent or to act on its behalf is wholly different from any other officer or employees working under it. Every such other officer or employee can representatively sue or be sued. However, the respondent has chosen to show the Senior Manager as the one representing the petitioner authority, which is totally unsustainable. Therefore, there being no proper representation of a statutory authority and there being no due service on such validly constituted representing officer, it cannot be said that there is proper suing and consequently, proper service of summons. Therefore, such lapse itself would constitute a valid ground and sufficient reason for seeking an opportunity through proper application to contest the proceedings. Surprisingly, the entire process is unusually hastened by an ex parte decree on the next day and getting executed immediately. It is stated on behalf of the petitioner that no doubt for fear of attachment, the amount was immediately paid. Further, the allegations that the said Director was on leave during the aforesaid period and there was a transfer of the officer are not denied, though he is the officer to represent and no summons are served on him. In fact, he is not a party in any capacity. There is no valid acceptable explanation is coming forth from the respondents, in choosing the Senior Manager, or representing the authority. However, a corresponding officer cannot be a due representative to sue or to be sued. Thus, it is a fit case, where matter could have been reopened to have a contest on merits. Therefore, it has to be held that improper description in representing an authority and consequent service of summons on personnel other than an officer competent to represent constitute a valid and good sufficient cause for both the purposes of Section 5 of the Limitation Act and also for Rule 13 of Order 9 of CPC. In the circumstances, the lower Court ought to have provided an opportunity more so when an ex parte decree is at the threshold itself. In view of the same, it cannot be said that there is any such serious laches on the part of the petitioner so as to not to give an opportunity to contest the suit. Even otherwise, such laches on the officers like the petitioner can as well be compensated on terms.
10. In the circumstances, it is a fit case to be allowed subject to payment of costs. The civil revision petition is accordingly allowed and I.A. Nos. 726 and 1961 of 2001 are allowed on payment of costs of Rs. 5,000/ - to the respondent within a period of four weeks from today. The lower Court is directed to dispose of the suit on merits after giving opportunity to both the sides. It is needless to observe that the costs awarded shall be recovered from the officers who are responsible for the lapses and the laches. No costs.