Andhra Pradesh High Court - Amravati
M/S. Shriram Transport Finance Co. ... vs K.Adinarayanamma, on 19 December, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
+ CIVIL REVISION PETITION NO: 1360/2022
%Dated: 19.12.2024
# M/s.Shriram Transport Finance Co. Ltd. ...... Petitioner
and
$ K.Adinarayanamma and two others ..... Respondents
! Counsel for the Petitioners: Ms.A.Priyanka
^ Counsel for the Respondents : -
< GIST :
> HEAD NOTE :
? Cases referred :
1
(C.R.P.No.6745 of 2018 dated 10.04.2019)
2
(1997) IMLJ 37
3
AIR 1964 SC 993
2
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
CIVIL REVISION PETITION NO: 1360/2022
M/s.Shriram Transport Finance Co. Ltd. ...... Petitioners
and
K.Adinarayanamma and two others ..... Respondents
DATE OF ORDER PRONOUNCED: 19.12.2024
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No
to see the fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
________________________
CHALLA GUNARANJAN, J
3
APHC010200592022
IN THE HIGH COURT OF ANDHRA
PRADESH
[3509]
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE NINETEENTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
CIVIL REVISION PETITION NO: 1360/2022
Between:
M/s. Shriram Transport Finance Co. Ltd., ...PETITIONER
AND
K Adinarayanamma and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. SAI SANJAY SURANENI
Counsel for the Respondent(S):
1.
The Court made the following:
ORDER:(per Hon'ble Sri Justice Ravi Nath Tilhari) The petitioner-M/s.Shriram Transport Finance Co. Ltd., is the decree holder. An award dated 14.06.2018 in Arbitration 4 Case No.434/2012 was passed in favour of the petitioner and against the respondents 1 and 2.
2. The 3rd respondent is sole arbitrator and is served.
3. The respondents 1 and 2 filed application/petition under Section 34(2) of the Arbitration and Conciliation Act, 1996, for setting aside the award, numbered as Arbitration O.P.No.540 of 2018 in the Court of the IV Additional District Judge, Kadapa. The petitioner could not appear on 08.11.2019, and also could not file the counter. The petitioner was set ex parte on 08.11.2019. The petitioner filed I.A.No.1261 of 2019 under Order IX Rule 7 C.P.C. to set aside the order dated 08.11.2019 along with the counter. The respondents 1 and 2 filed objection to dismiss I.A.No.1261 of 2019. The petition I.A.No.1261 of 2019 has been dismissed vide order dated 24.12.2021 by learned IV Additional District Judge, Kadapa.
4. Challenging the order dated 24.12.2021, the present civil revision petition has been filed under Article 227 of the Constitution of India.
5
5. Notices were issued to the respondents, through registered post, pursuant to the orders dated 11.08.2022, 08.09.2022, 14.11.2024 and 05.12.2024. Fresh steps were also taken. As per the office report the notice sent to the respondents 1 and 2 are unserved and returned with the postal endorsement 'no such person in this address'. A perusal of the registered envelope shows that the notices were sent at the address mentioned in this petition, which is the same as given by respondents 1 and 2 in their Arbitration O.P.No.540 of 2018, for setting aside the award filed by them. The petitioner has filed the memo of proof of service dated 11.12.2024, stating that the counsel for the respondents 1 and 2 herein, appearing in the Arbitration O.P.No.540 of 2018 was served through registered post on 11.12.2024. By order dated 14.11.2024, the petitioner was granted permission to serve the notice on the counsel for the respondents 1 and 2 in the Arbitration O.P.No.540 of 2018. The learned counsel for the petitioner further submits that the petitioner has also filed a memo seeking adjournment of the Arbitration O.P.No.540 of 2018 before the learned court below on the ground of the pendency of the C.R.P in this court. He submits 6 that consequently, the respondents 1 and 2 are served and have notice of the civil revision petition but they are avoiding to appear, to delay the proceedings with respect to the award against them.
6. From the aforesaid, we are of the view and hold that the notices are served to the respondents 1 and 2.
7. We proceed to decide the civil revision petition finally.
8. Heard Ms.A.Priyanka, learned counsel representing Sri Sai Sanjay Suraneni, learned counsel for the petitioner.
9. Learned counsel for the petitioner submits that the order to proceed ex parte dated 08.11.2019 could not be legally passed, if the counter was not filed. She submits that if the counter was not filed within the time and even if the court was not inclined to extend the time, the right to file the counter could be closed but the order to proceed ex parte could not be passed for that reason.
10. Learned counsel for the petitioner next submits that in any case, the cause shown in Para (3) of the affidavit filed in support of I.A.No.1261 of 2019 was sufficient for recall of the order dated 08.11.2019. She placed reliance in M.V.Ramana Rao v. 7 N.Subash1 and Pilla Reddy v. Thimmaraya Reddy2 , in support of her contentions.
11. The following point arises for our consideration and determination:
" Whether the impugned order suffers from illegality and calls for interference?"
12. We have considered the submissions and perused the material on record.
13. We reproduce para(4) of the impugned order as under:
"4. POINT- As the out set, there is no dispute that by virtue of Order VIII Rule 1 of CPC., the defendant cannot be permitted to file written statement after more than 120 days from the date of service of summons. In the present case, there is no need to file a written statement or a counter as an appeal is filed aggrieved by the award by the Arbitrator dt. 14.06.2018 and still several chances was availed by the petitioner from 17.12.2018 for filling counter and when the counter was not filed within 90 days as envisaged of CPC The respondent was set exparte and in view of the categorical finding in the Judgment of the Hon'ble High Court mentioned above, the petitioner cannot be permitted to file counter after expiry of the time and more over there is no proof filed by the petitioner to show that due to official engagement he was out of station and even assuming for movement, it is true there is no reason why the petitioner could not approach on the next day for fling the petition. Hence in the circumstances, the petition is dismissed."1
(C.R.P.No.6745 of 2018 dated 10.04.2019) 2 (1997) IMLJ 37 8
14. A perusal of the impugned order shows a) that there was no proof in support of the cause shown and even if the cause be taken to be true, there was no reason as to why the petitioner could not approach, filing application on the next date, and b) that the learned IV Additional District Judge, in rejecting the I.A. has taken the view that against the award of the Arbitrator, an appeal was filed and therefore, there was no need to file the written statement or counter in the Arbitration O.P.No.540 of 2018, which was for setting aside the award and further that several chances were availed but the counter was not filed within 90 days as envisaged in C.P.C.
15. We are not satisfied on any of the reasons assigned in the order for rejecting the I.A. The approach of the learned court has not been judicious and the view taken is too technical and contrary to the settled legal position, which does not advance the cause of justice.
16. We shall deal with the first ground of rejection in 14(a) supra.
17. Order IX Rule 7 C.P.C reads as under:
9
"Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.--Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
18. On above reading of the provisions of Order IX Rule 7 C.P.C, it is evident that, it is not necessary to file the application to set aside the order to proceed ex parte, immediately on the next date of adjournment. The legal position as settled by the Hon'ble Apex Court in Arjun Singh v. Mohindra Kumar3, is that so long as the proceedings of the suit are pending, an application under Order IX Rule 7 CPC would be maintainable. Consequently, the main proceedings being pending, the application under Order IX Rule 7 CPC was maintainable.
19. In Navayuga Engineering Company Ltd. v. Structicon India Pvt. Ltd (SIPL)4, a Coordinate Bench of this Court, on consideration of Arjun Singh (supra), Sangram Singh v. Election Tribunal5, held as under in paras 52 to 55: 3
AIR 1964 SC 993 4 2024 SCC OnLine AP 4398 5 1955 SCC OnLine SC 21 10
52. In Arjun Singh (supra) the Hon'ble Apex Court on the scope of Order 9 Rule 7 CPC held as under in para 18:
"..........Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX. Rule 7. The opening words of that rule are, as already seen, 'Where the Court has adjourned the hearing of the suit exparte'. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX. Rule 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of Rules 6 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, Rule 7 could have no application and the matter would stand at the stage of O. IX, Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in order IX applicable............."
53. In Arjun Singh (supra) in para 20, the Hon'ble Apex Court further held as under:
"...........Having thus exhausted the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed exparte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of 11 the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX, r. 13 would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days he might have the earlier proceedings recalled" set the clock back"
and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a- vis the non-appearance of the defendant at the hearing 'of a suit has been provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for, the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a case of the 12 sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion 'that there is such a stage is, on the scheme of the Code, wholly unrealistic. ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under O.IX. r. 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r.
7.........."
54. In A.P.Southern Power Distribution Power Company Limited (APSPDCL) v. Hinduja National Power Corpora- tion Limited, the Hon'ble Apex Court observed as under
in para 95:
"95. It can be seen that this Court in Arjun Singh (supra) has held that CPC contemplates two stages of the trial in the suit: (1) where the hearing is adjourned; and (2) where the hearing is completed. It has been held that where the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order 20 Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It has been held that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it 13 necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order 9 Rule 7.
55. Therefore, the well settled position in law is that so long as the hearing of the suit is not completed an ap- plication under Order 9 Rule 7 CPC can be filed. If the cause shown is found to be sufficient, the Court shall set aside the order to proceed ex-parte. In such a case, 'set back the clock' would be from the stage the defen- dant was set exparte. But, if the order to proceed ex- parte passed under Order 9 Rule 7 stands, because ei- ther any application to set aside the order to proceed ex parte has not been filed or if filed is rejected, as the cause shown is not sufficient, still, the defendant is at liberty to proceed and participate in the suit proceed- ings from the stage it is pending. If the suit has been reserved for judgment, the application would not be (2022) 5 SCC 484 maintainable. Then, the defendant would have to wait for the final verdict and if it goes against him, he can file an application under Order 9 Rule 13 CPC or he may choose to challenge the final de- cree in appeal."
20. In Pilla Reddy (supra), upon which learned counsel for the petitioner relied, the Madras High Court has also held as under in para (9):
"When the law says that the defendant need show only good cause for his previous non-appearance, it follow that till the matter is being heard, he can come at any time. There can- not be any question of limitation in such cases."
21. We are of the view that the cause as mentioned was sufficient cause. The cause stated was that the Senior Recovery Executive of the M/s.Shriram Transport Finance Co. Ltd could not 14 be available as he went to out of station on official duty. The absence was neither intentional nor due to negligence. Such cause, should have been believed as considering the nature of the duty, such person might have been not available. Such cause, in the absence of anything to show to the contrary as also in the absence of any finding of wilful or negligent, deserved to be accepted.
22. So far as Para (14) (b) ground (supra), filing of the written statement is concerned, at the stage of the consideration of the application under Order IX Rule 7 CPC the Court has to see, the existence of the sufficient cause for the absence, for setting aside the order passed to proceed ex parte. At this stage, the rejection of the application under Order IX Rule 7 CPC, on the ground that the counter could not be permitted to be filed, after the expiry of the statutory period and the rejection of the counter as well, cannot be justified. If the cause shown is sufficient then order to proceed ex parte, is to be set aside. Then, it should be considered if the filing of written statement is to be permitted or not on the consideration under Order VIII Rule 1 CPC. The procedural law it is well settled is handmade of justice. 15
23. In Salem Advocate Bar Association v. Union of India6, the Hon'ble Apex Court has held that the provisions of Order VIII Rule 1 CPC are part of procedural law and are directory. A prayer for extension of time to file written statement may be allowed beyond the statutory period, by way of exception, though not frequently or in a routine manner. So, consideration of extention of time to file written statement should have been made keeping in view the aforesaid principles, as also that, the award was in favour of the petitioner. The respondent had filed application to set aside the award in which the petitioner had to file written statement. The petitioner was not going to gain or being benefitted by causing delay in filing written statement. The learned Court is also not justified in observing, that the written statement was not required as appeal was pending against the award. Mere pendency of the appeal could not be a ground to hold that written statement was not required in proceedings under Section 34 of the Arbitration Act for setting aside the award or to deny its filing.
6 (2005) 6 SCC 344 16
24. M.V.Ramana Rao (supra), is on the point of set off and the maintainability of the C.R.P under Section 8 of the Commercial Courts Act. The same is not relevant to the controversy as involved in the present case.
25. Thus considered, the impugned order deserves to be set aside along with the order to proceed ex parte.
26. The Civil Revision Petition is allowed, setting aside the order dated 24.12.2021 in I.A.No.1261 of 2019 and the order dated 08.11.2019 to proceed ex parte in A.O.P.No.540 of 2018, passed by the learned IV Additional District Judge, Kadapa. The learned court shall consider the permission for filing written statement/counter as per Order VIII Rule 1 C.P.C and keeping in view the observations made in this judgment.
27. No order as to costs.
As a sequel thereto, interlocutory applications, if any pending, shall also stand closed.
_____________________ RAVI NATH TILHARI, J ________________________ 17 CHALLA GUNARANJAN, J Date: 19.12.2024 Note:
L.R.Copy to be marked.
B/o.
Pab 18 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL REVISION PETITION NO: 1360/2022 Date:- 19.12.2024 Pab 19