Delhi District Court
Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL03)
TIS HAZARI COURT / DELHI
M. No. : 19/2013 in suit No. No. 1018/2008.
Titech Engineers Pvt. Ltd. ..... Plaintiff/Respondent
Vs. Tirumula Tirupati Devasthanams ....Defendants/Petitioners 12.05.2015 ORDERS (On application dated 05082013 moved under Order 9 Rule 13 CPC)
1. By way of this misc. application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, the J.Ds./the defendants in the suit ( hereinafter referred as the petitioners) have prayed for setting aside the judgment/decree dt. 06.12.2012 passed by the Ld. Predecessor of this Court, in Suit No. 1018/2008.
M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 1/19 2
2. The brief facts in narrow compass, relevant and necessary for the disposal of this application, are that the Decree Holder/the plaintiff in the suit ( hereinafter referred as the respondent) had accepted the tender invited by the petitioners/defendants for constructing its staff quarters at Andhra Ashram Rishikesh and the petitioners/defendants awarded the work contract for the value of Rs. 52,73,188/ and the respondent/plaintiff had expected the normal profit @ 15 % of the contract rate but the contract was rescinded illegally by the defendant thereby a suit for recovery of an amount of Rs. 17,57,311/ with pendentelite and future interest was filed and the suit was decreed exparte for the claimed amount of Rs. 17,57,311/ with pendentelite and future interest @ 12 % per annum till its realization vide Judgment/Order dated 06122012.
3. In the application, it is averred that the case of the petitioners/defendants was represented by Mr. B. Parthasarthi, an Advocate of the Supreme Court but as he was not regularly M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 2/19 3 appearing in the District Courts, he assigned the case to Mr. R.C. Bhalla, an Advocate who was pursuing the case on behalf of Mr. B. Parthasarthi and under his guidance but unfortunately Mr. B. Parthasarthi expired in the year 20102011 and the Govt. of Andhra Pradesh had appointed a new lawyer in the Supreme Court and all the case files including that of this case were collected by the officials of the petitioners/defendants from Mr. R.C. Bhalla, the counsel who then stopped appearing in the present case believing that the case will be attended by the new counsel so appointed by the State of Andhra Pradesh.
And that vide letter dated 28052013, the petitioners/defendants asked Sh. R.C. Bhalla, the Advocate, to appear on 01072013 in another case titled as Titech Engineers Pvt. Ltd. Vs. Tirmula Tirupati Devasthanams, and there in that court, he came to know that in the present case an exparte decree has been passed against the petitioners/defendants on 06122012 and only on obtaining 'knowledge' on 01072013 about the decree, he had applied for M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 3/19 4 the certified copy of such decree/Judgment/order and the copy was received only on 15072013 & then the petitioners/JDs had moved the present application for setting aside the exparte decree dated 06122012.
4. In support of the application, Ld. Counsel appearing for the petitioners has submitted that due to the death of the previous counsel as the petitioners had lost the track of the case and their nonappearance was not intentional as they were prevented to appear on the date of hearing for sufficient cause and on obtaining 'knowledge' on 01072013 about an exparte decree passed against them, they could move the present application praying to setaside the judgment/decree dated 06.12.2012 and they may be allowed to contest the suit so that the suit can be decided on merits.
5. Ld. Counsel for the respondent/plaintiff has vehemently countered the application submitting that there exits no reasonable ground or sufficient cause in the present application M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 4/19 5 for setting aside the decree and that the contentions regarding the period of death of Mr. B. Parthasarthi in the year 20102011 were factually wrong as Mr. B. Parthasarthi had expired on 25112007 and the petitioners have not placed any records or details about the appointment of another counsel by the Govt. of Andhra Pradesh or collection of the case file of this case by petitioners from Sh. R.C. Bhalla, Advocate, after the death of Mr. B. Parthasarthi as Sh. R.C. Bhalla, the counsel had not only continued appearing for about 4 years after the date of death of Mr. B. Parthasarthi, in the case during trial upto 17112011 and he has filed his Vakalatnama, duly signed by the petitioners in that case but also even the present application was moved by the same counsel who had filed his Vakalatnama for them, that was also duly signed by the petitioners' authorized representative, an Assistant Engineer and no letter/document of assignment of any of the two cases, issued by Govt. of Andhra Pradesh is filed to show that the Govt. of Andhra Pradesh used to appoint counsels either in that case or for the application as alleged, thus, the contentions regarding the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 5/19 6 obtaining of the knowledge on 01072013 about passing of this exparte decree during the appearance in another case are factually incorrect and not supported by any document/record to substantiate such contentions and thus the present application is hopelessly time barred and is liable to be dismissed.
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. In the instant case, the petitioners/ who were defendants in the suit, were duly served upon the summons of the suit and thereupon they have caused their appearance on 21052007 through their counsel namely Sh. R.C. Bhalla, an Advocate who had filed his Vakalatnama duly signed by the executive officer of the defendants ( petitioners) on their behalf and he had filed the written statement on 03082007 along with the affidavit of one Sh. Chandra Shekhar Reddy, Deputy Manager of the defendant No. 1 ( JD No. 1) and had sweared the affidavit on behalf of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 6/19 7 both the defendant Nos. 1 & 2 ( JD Nos. 1 & 2).
8. It is observed that as per record the trial had proceeded further and the issues were framed on 12072011 when the matter was posted for 05092011 for PE and then on 17112011, since then none had appeared on behalf of the petitioners/defendants and on 20042012 the matter was posted for crossexamination of PW1 with last opportunity given to them for crossexamination of PW1 but neither on 13082012 nor on 04122012 none had caused the appearance for the petitioners/defendants and for the absence for two consecutive dates, the petitioners/defendants were proceeded exparte vide order dated 04122012.
9. Thus, it is clear from record that in the case, the summons of the suit were duly served upon the petitioners/defendants and they had participated in the trial until 17112011 when the matter was posted for plaintiff's evidence and thereafter, none had appeared on the dates of hearing until 06122012 when M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 7/19 8 the decree was passed and through the present application, the petitioners have sought setting aside of the exparte decree under the provisions of order 9 Rule 13 CPC on the pretext of obtaining knowledge of passing of such decree only on 01072013 to seek protection of limitation to be reckoned from 01072013 for the leave sought of setting aside of such decree through the application moved on 05082013, after a period of 8 months since the date of decree passed on 06122012.
10. The petition is contested on the ground that it is hopelessly time barred under Article 123 of the Limitation Act that prescribed a period of 30 days from the date of decree, as the protection to reckon the period from 01072013, on the ground of obtaining knowledge was not available for the petitioners nor any sufficient cause shown for preventing them from appearing on the dates of hearing during trial.
11. Now, to answer such query, the proposition of law u/o. 9 Rule 13 CPC and the Article 123 of Limitation Act, 1963, for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 8/19 9 purpose of limitation is to be looked into.
12. As per the proposition of law, the horns of Rule 13 of Order 9 CPC can be raised, for setting aside exparte decree against 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 petitioners/applicants 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 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 9/19 10 date of hearing and had sufficient time to appear and answer the plaintiff's claim.
13. Also, for invoking of such provisions under Order 9 Rule 13 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.
14. 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. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 10/19 11 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 straight jacket formula of universal application."
15. 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".
16. The legal propositions as per amended code of CPC has been discussed in a case titled as Sunil Poddar Vs. Union Bank of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 11/19 12 India, cited as AIR 2008 SC 1006, wherein it was observed that, "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".
17. Now, on application of the guiding principles as laid by the Apex Court and as per the settled legal propositions under order 9 Rule 13 CPC, to the factual position of the instant case, it is observed that the summons of the suit were duly served upon the defendants/petitioners who have caused the appearances in the court through their counsel Sh. R.C. Bhalla, who had filed his Vakalatnama duly signed by the authorized officer of the petitioners/defendants and even now he is appearing for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 12/19 13 defendants as a counsel for them and thus they joined the proceedings and participated in the trial from 21052007 until 17112011 and thereafter, they had stopped appearing on their own until the judgment/decree was recorded on 06.12.2012.
18. The sufficient cause shown and pleaded for non appearance in the trial was that some time in the year 201011 Sh. B. Parthasarthi, an Advocate of Supreme Court who assigned the case to Sh. R.C. Bhalla, Advocate, expired and the case files including the file of the present case were collected by the officials of the defendants/petitioners from Sh. R.C. Bhalla as a new counsel in the Supreme Court was appointed by the Govt. of Andhara Pradesh and vide letter dated 28052013 from the defendants he was asked to appear in another case on 01072013 and on that date he came to know about the exparte decree of this case.
19. The correct factual position as brought to the knowledge of this court was that Sh. B. Parthasarthi, an Advocate of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 13/19 14 Supreme Court had expired on 25112007, the fact was not disputed. No document was placed on record to show that Sh. R.C. Bhalla, Advocate was assigned the case by Sh. B. Parthasarthi, an Advocate of Supreme Court or that Sh. B. Parthasarthi was appointed as an advocate in this case by the Govt. of Andhra Pradesh or that after his death another advocate practicing in Supreme Court was appointed for this case.
To the contrary, the vakalatnama of Sh. R.C. Bhalla was duly signed by the executive officers of the petitioners/defendants and was filed on record on 21052007 and that Sh. R.C. Bhalla, the Advocate had appeared in the trial upto 17112011 even after 4 years of the death of Sh. B. Parthasarthi, an Advocate of Supreme Court.
Further, it is observed that no document was placed on record to show that any letter dated 28052013 of the petitioners/defendants was issued vide which the counsel Sh. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 14/19 15 R.C. Bhalla was asked to appear in another case on 01072013 or that Govt. of Andhara Pradesh appointed another Advocate in this matter in 201011 when the petitioners/defendants had collected the files from Sh. R.C. Bhalla and even the name of such advocate of Supreme Court was not disclosed to show the bonafide to whom the petitioners/defendants had handed over the case file of the suit, rather a document has been placed on record that Sh. R.C. Bhalla was appearing as an Advocate for the defendants/petitioners in CM(M) Nos. 115152/2007 before the Hon'ble High Court of Delhi.
More surprising was that even today the present petition is moved and pursued by the same counsel Sh. R.C. Bhalla, Advocate who has filed his Vakalatnama on record for the defendants/petitioners, duly signed by Sh. P. Chiranjeev Kumar, the Assistant Engineer of the defendants/petitioners.
20. Thus, clearly the summons of the suit were duly served M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 15/19 16 upon the petitioner/defendants who caused their appearances through Sh. R.C. Bhalla, Advocate, and they participated in the trial upto 17112011 from then none has appeared on behalf of the petitioners/defendants in the trial until the decree and the petitioners/defendants have failed to show any 'sufficient cause', as per the settled principles above discussed, that the petitioners/defendants honestly and sincerely intended to remain present when the suit was called on for hearing and did their best to do so or have acted diligently to appear on the dates of hearing or that there was a sufficient cause for which the petitioners/defendants could not be blamed for their absence or that they had approached the court with a reasonable defence or within the prescribed period of limitation to seek remedy.
21. It is clear from the record that they have failed to show that they were prevented to appear and contest the matter due to some cause that could be treated as sufficient and beyond their control.
M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 16/19 17
22. 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 the petitioners/defendants had notice of the date of hearing of the suit and from the record it is clear that admittedly on 17112011 they had notice of the date of hearing of the suit for 22122011 for plaintiff's evidence, but they stopped appearing onwards and they had given sufficient time & opportunities to appear and answer the claim of the plaintiff as they were proceeded ex parte on 04122012, only after their nonappearance was noted for two consecutive dates.
23. 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 petitioners/defendants were duly served with the summons of the suit and there was no irregularity in the service of the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 17/19 18 summons. Thus, the protection sought on the basis of knowledge on 01072012 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 petitioners had knowledge of the decree was available only in the circumstances where the summons or notice was not duly served upon the petitioners/defendants, in view of the provisions of Article 123 of the Limitation Act. The petitioners' case is not that the summons were not served upon them to seek protection of limitation from the date of knowledge of the decree.
Thus, in view of the fact that the summons were duly served upon the petitioners who participated in the trial for a long period of four years and were not able to show any sufficient cause by which they were prevented from appearance on the dates of hearing, the period of limitation for the purpose of the petitioners for 30 days starts from the date of decree and not from the date of knowledge of passing of the decree. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 18/19 19
24. Thus, in the above noted facts and circumstances, the application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants, after 8 months of the date of decree dated 06122012, is hopelessly time barred and therefore, the application dated 05082013 is being devoid of any merits, stands dismissed. Announced in the open Court (Dr. Archana Sinha) on 12th day of May, 2015 Addl. District Judge (Central03) Tis Hazari Courts / Delhi 12.05.2015 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 19/19 20 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 12.05.2015 Present:
Vide separate detailed order announced in the open court, the application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants stands dismissed.
File be consigned to record room.
(Dr. Archana Sinha) ADJ (Central) 03 / Delhi 12.05.2014 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 20/19 21 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 21/19