Delhi District Court
This Order Shall Decide The Application ... vs . on 5 September, 2012
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE02 (NORTH)
TIS HAZARI COURTS, DELHI
M85/08 (in suit no. 562/96)
India Industrial Garment Machines Pvt. Ltd.
Vs.
M/s. Wool & Fibre Spinners & Ors.
ORDER
This order shall decide the application of judgment debtor/applicant u/O 9 rule 13 r/w Section 47 and 151 CPC for setting aside the exparte decree in suit no. 562/96 passed by Sh. S.N. Dhingra, Ld. ADJ (as this Lordship then was).
It is submitted by the JD/applicant that the JD/applicant was a partner in the firm M/s Wool and Fibre India Ltd. and JD No.1 was a partner of the said firm alongwith following persons Sh. Narender Nath Sharma (expired), Sh. Sashikant Sharma and Sh. Sudesh Kumar Sharma. It is submitted in the application that JD was proceeded against exparte decree vide order dated 01.07.1999 by Sh. S.N. Dhingra, then Ld. ADJ. It is stated that the present execution petition was filed by DH against JD through one of its partners Sh. Vijay Sharma who came to know about exparte judgment against him only on 06.08.2004 when court bailiff alongwith representative of DH came to his residence for exparte decree. It is stated that ex parte decree was obtained by fraud. It is averred that partnership firm M/s Wool and Fibre India Ltd. comprises of four partners but only the applicant/JD was made a party and not all the partners. It is alleged that on the inspection of the court file by the counsel of JD/applicant it was found that no process for summoning JD/defendant had been filed nor was JD/defendant served with the summons. No opportunity was given to the JD to defend himself which is against the principles of natural justice. It is also stated that all the assests including building and machinery belongs to the partnership firm M/s Wool and Fibre India Ltd. was hypothecated with Indian Bank, Rana Pratap Bagh and suit for recovery was filed by the bank against the firm M/s Wool and Fibre India Ltd. and its partners in 1993 which has been settled and the property is in the process of being discharged with the Indian Bank in favour of the partnership firm M/s Wool and Fibre India Ltd. It is further alleged that partnership firm M/s Wool and Fibre India Ltd. has been dissolved vide dissolution deed dated 30.03.2001 and Sh. Sashikant Sharma, one of the partners has taken over and released all the partners of the firm M/s Wool and Fibre India Ltd. from all the obligations and liabilities past, present and future and has taken over the firm M/s Wool and Fibre India Ltd. as per terms and conditions of dissolution dated 30.03.2001.
It was further the averment of JD that Sh. Shashi Kant Sharma had duly accepted this arrangement vide communication dated 06.04.2001 to the Chief of Indian Bank managing HSIDC. It is therefore prayed that exparte judgment of decree to be set aside and the JD/applicant be allowed to put forward his defence and lead evidence.
Replication has been filed by the DH to the application of JD u/O 9 rule 13 r/w Section 47 and 151 CPC. Various preliminary submissions and objections have been raised thereto. It is submitted by DH that vide order dated 01.07.1999 Sh. S.N. Dhingra, the then Ld. ADJ, decreed the suit in favour of the DH. Till date the decree has remained unsatisfied since objections have been raised by JD. It is further submitted that on 05.07.2001 an application was moved by JD No.1 u/O 9 rule 13 r/w Section 151 CPC for setting aside decree dated 01.07.1999. The same was however, was dismissed in default vide order dataed 17.12.2003. Thereafter, fresh warrants of attachment were issued against the JDs and present application was filed by JD no. 2 making frivolous and concocted allegations. It is averred that the allegation that JD was not served with any summons is false and against the record. It is stated that notice of the suit was duly served on the JD on 10.08.1994 and even a vakalatnama was filed on their behalf but none appeared thereafter. Notices were again issued to the JDs but there was no appearance on their behalf therefore, they were proceeded exparte vide order dated 13.09.1996. This also found mention in para 3 of the judgment dated 01.07.1999. It is stated that other pleading of the JD that partnership firm M/s Wool and Fibre India Ltd. has been dissolved vide order of dissolution dated 30.03.2001 and one of the partners Sh.Sashikant Sharma has taken over and released all the partners from all the liabilities past, present and future cannot be accepted since the alleged dissolution is not with the consent of the DH. DH has been granted decree against partnership firm M/s Wool and Fibre India Ltd. and the applicant/JD is admittedly a partner of the firm. It is stated that since all the partners of the partnership firm M/s Wool and Fibre India Ltd. are jointly and severally liable even in their personal capacity, the applicant/JD cannot escape to pay the decreetal amount. It is stated that even otherwise present application is barred by limitation and contains false allegation that applicant/JD no.2 came to know about exparte judgment against him only on 06.08.2004 when court bailiff alongwith representative of DH came to execute exparty decree. It is submitted that it is a matter of record that the court bailiff has repeatedly visited the premises from 20002004. Further statements have been given by wife and other relatives of the applicant/JD to the effect that they would inform the JD for payment against decree and for settlement. However, neither did the JDs approached the DH for settlement nor any payment was made to the DH and consequently, present petition is still pending. It is stated that contentions in the application and fact of the applicant/JD contradicted the allegations made by the JD and established a malafide intention of the JD, it is submitted that applicant/JD no.2 all along represented JD firm M/s Wool and Fibre India Ltd. and had dealings with DH. It is reiterated that the JDs were duly served on 10.08.1994 and allegations made by the JD are denied. It is also reiterated that not only the present JD but other partners of the firm M/s Wool and Fibre India Ltd. are also jointly and severally liable to pay the decreetal amount in satisfaction of decree. It is also stated that JD cannot escape liability even if the partnership was allegedly dissolved vide dissolution dated 30.03.2001. The same is much after the transaction between parties took place and also after the passing of the decree. JD cannot seek to absolve himself from making the payment therefore, it is prayed that the application of the applicant/JD may be dismissed with cost.
Heard the Ld. counsel for the parties. The DH/non applicant has relied upon AIR 1988, Rajasthan 2001, Sh. Piragchand Vs. Firm Ram Lal Channamal wherein, it is held by the Hon'ble High Court of Rajasthan while deciding a revision petition against an order of dismissal of the application u/O 9 rule 7 CPC, where the defendant elected not to participate in the proceedings and suit proceeded exparte against him, even if suit was dismissed in default, the suit could be restored back to its original number without notice to the absentee defendant against whom the suit was already proceeding exparte. Ld. counsel for decree holder argued that though in that case, no notice was deemed required on restoration for a defendant who chose to remain exparte, the judgment would apply to the present case as well, where defendants had filed written statement, thereafter did not appear and only claimed that they came to know of the proceedings when the Bailiff came to the house of the present JD. It was also the argument of the decree holder that in review also, no new facts were urged which was evident from the judgment. I am in agreement with the contentions of the Ld. counsel for the decree holder.
In this suit initially notice was sent to the defendants who were served vide order dated 10.08.1994, vakalatnama was also filed on their behalf however none appeared thereafter. Again notices were issued to the defendants and since they chose not to appear therefore, they were proceeded exparte on 13.09.1996 vide ex parte judgment dated 24.09.1996. The suit of the plaintiff/DH to recover sum of Rs. 2,10,980/ was dismissed. A review application was filed and vide judgment dated 01.07.1999 the suit of the plaintiff/DH was decreed for a sum of Rs.1,37,000/ alongwith interest @ 15% p.a. from 01.01.1989 till recovery of the amount. Execution proceeding were filed on 14.01.2000. In this case it is very clear that defendant has deliberately not appeared despite being duly served when the case was originally filed. The contention of the Ld. counsel for the DH has much credence that the JD evaded the proceedings and it is pointed out by the DH that in the application u/O 21 rule 29 and 50 filed by the JDs on 12.12.2008 in para 10, it is JD's own contention that the suit was dismissed initially and the defendant came to know of the same through their counsel. After filing of vakalatnama there was no reason for the JDs/defendants to not contest the suit and now that there is a decree operating against them they have filed various applications. Earlier application u/o 9 rule 13 filed by the JD firm was already dismissed. In the present application the averments made by the JD no.2 that since the firm has been dissolved he is no more liable as, Sh. Sashikant Sharma has taken all the liabilities upon himself may be a matter which is personal to the partners of the partnership firm M/s Wool and Fibre India Ltd. However, it is well settled as per legal provisions laid down in the Section 32 (2) of Indian Partnership Act as follows Section 32. Retirement of a partner (1)..............
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
No such agreement is pleaded by JD with the DH and DH denies any knowledge of the retirement of the JD from the firm.
Also, in this case the dissolution deed is in the year 2001 whereas, decree is of the year 1999. JD cannot seek to escape from his liabilities and JD's contentions that notice of the review application was not served upon JD cannot stand in view of the ratio of the judgment replied in AIR 1988, Rajasthan 2001 which though deals with the situation where suit was proceeded as exparte and was dismissed in default and same was restored to its original number without giving any notice to the absentee defendants and pertains to the provision u/O 9 rule 9 CPC, however, the situation herein is similar and notice of the review application was not required to be served upon defendants/JDs who deliberately chose not to contest the suit and this is not a case where summons to the suit were not originally served on the defendants. The defendants/JDs cannot take advantage of their own wrongs and stagnate the proceedings. In any case after order of review of the judgment has been passed itself. The present application U/o 9 R 13 CPC appears to not be maintainable.
On the last date the JD was directed to file affidavit regarding the property of JD no.1 at Kundali, Sonipat. However, affidavit has been filed today which is more in the nature of written submissions and is not the affidavit that was called for by the court. Ld. counsel for the DH stated that this is because of the fact that already property at Kundali, Sonipat has been sold out and Ld. counsel for the DH has placed on record photocopy of the order dated 25.03.2010 in CSOS1147/2004 in this regard and submits that this shows the malafide intention of the JDs. The conduct of the JDs in attempting to stall the execution of the decree and trying to deprive DH of the fruits of his decree which was passed way back in the year 1999 is deplorable.
The application u/O 9 rule 13 r/w Section 47 and 151 CPC is not at all maintainable being malafide and mere attempt to delay execution of decree and is thus hereby dismissed.
File be consigned to the record room.
Announced in the open court ANJANI MAHAJAN
On 30.08.2012. Civil Judge - 02 (North)
30.08.2012
30.08.2012 M85/08 (Suit No. 562/96)
Present: None.
The application of the judgment debtor u/O 9 rule 13 r/w Section 47 and 151 CPC is dismissed.
File be consigned to the Record room.
ANJANI MAHAJAN Civil Judge 02 (North)/THC Delhi/ 30.08.2012