Bombay High Court
State Bank Of India vs Himalayan Tiles And Marble Pvt. Ltd. And ... on 21 July, 1993
Equivalent citations: 1994(2)BOMCR399, (1993)95BOMLR677
JUDGMENT M.S. Rane, J.
1. The most important point that arises for consideration in this application is whether an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the judgment pronounced in favour of the plaintiffs for want of pleadings of the defendants under Order VIII, Rule 5(ii) and Rule 4 of the Code of Civil Procedure is maintainable.
2. The 3rd defendant has made this application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside, according to him, an ex-parte decree passed on 8th January, 1993 in the suit herein. He has also claimed the stay of the execution of the said decree
3. The plaintiffs are the bankers and the suit herein has been filed for the recovery of the sum of Rs. 11,60,000/- and odd with interest from the defendants in respect of the credit facility granted to them. The 1st defendant, a limited company, are the principal borrower and the 3rd defendant, the applicant herein, is one of the directors of the 1st defendant. The suit was filed somewhere in October, 1979 and shortly thereafter the defendants were served with the writ of summons. It may be stated that as far as service of the writ of summons is concerned, there is no dispute. On 18th March, 1980 in the presence of the defendants' advocate the Court gave directions whereunder defendants were directed to file the written statement within four weeks from the date of the said order. The future directions for discovery and inspection were also given. The suit was transferred to the list of long causes and it was further directed for placing the matter for final hearing in February, 1983.
4. After such directions, it appeared on board from time to time. None of the defendants filed their written statement as per the directions of the Court. Finally, the said suit appeared on board on 8th January, 1993, when Mr. Chitnis, learned Advocate for the defendant Nos. 1 and 2(a) was present. The 3rd defendant and the other defendants were not present. As no written statement was filed by defendants, the Court proceeded to pronounce the judgment as provided under Order VIII, Rule 5 of the Code of Civil Procedure. The relevant part of the judgment passed on that day i.e. 8th January, 1993. read as follows:-
".........The plaintiffs in their suit have claimed a sum of Rs. 11, 56, 046.96 ps. with interest being the amount in respect of the credit facilities granted to the defendants as set out in the plaint. The plaintiffs tendered the original documents as per list marked Exhibit 'A' collectively. As stated, there is no written statement filed on behalf of the defendants although they have been duly served with the writ of summons. The case of the plaintiffs as set out in the plaint consequently has remained unchallenged and on controverted which entitles the plaintiffs for the judgment and decree for want of written statement. Decree in terms of prayers (a),(a-1), (a-2) and (b). Receiver to continue till the execution. Decree also in terms of prayers (c-i), (d-i), (d-ii) and (d-iii). Six months time is given to the defendants for redemption and on failure to redeem the receiver to proceed accordingly. Cost quantified at Rs. 4,900/-".
5. In these circumstances only 3rd defendant had made the application on 22nd April, 1993 which as stated in under Order IX, Rule 13 of the Code of Civil Procedure. In the supporting affidavit to the said application, the 3rd defendant has sought to explain as to why he could not or did not file his written statement and why he could not appear before the court. According to him the negotiations were going on with the plaintiffs in the matter and secondly he i.e. 3rd defendant was unwell and he required medical treatment including hospitalisation. The medical certificate has been annexed to the supporting affidavit which shows that the 3rd defendant was required to take medical treatment in the year 1992 and 1993.
6. The plaintiffs in their affidavit in reply have promptly denied about the alleged negotiations mentioned by 3rd defendant. The plaintiffs have raised the plea that the application made under Order IX, Rule 13 of the Code of Civil Procedure is not maintainable since the Court has pronounced judgment under Order VIII, Rule 5(ii) and sub-rule (4) of the Code of Civil Procedure.
7. Across the bar on behalf of the 3rd defendant the reference was made to certain decisions which I would make reference later o to highlight that application made under Order IX, Rule 13 of the Code of Civil Procedure will be competent and maintainable notwithstanding the Court pronouncing the judgment under Order VIII, Rule 4 of the Code of Civil Procedure.
8. Thus the main and crucial point as stated at the resume of the judgment is about the maintainability of the application herein.
9. Relevant provisions as contained in Order VIII of the Code of Civil Procedure, after 1976 amendment and as further amended in Bombay would need consideration. Sub-Rule (1) of the Order VIII (Bombay Amendment) provides as under:-
"(1) The defendant may, and if so required by the Court shall within such time as may be specified in this behalf or within such extended time as the Court may permit, present a written statement of his defence together with a copy thereof for plaintiffs.
Provided that the first adjournment for filing the written statement shall not ordinarily exceed six weeks and no further adjournment shall be granted except for reasons to be recorded in writing."
The proviso is new addition of Bombay Amendment. After amendment of 1976, the filing of written statement is made obligatory and Bombay Amendment makes the stringent provision when it provides "no further adjournment shall be granted." ..........etc.
10. Next important provision is as contained in Rule 5, Sub-rule (2) of Order VIII of the Code of Civil Procedure, which reads as under:-
"Where the defendant adopts dilatory tactics and wants to prolong the case by taking unnecessary adjournments and where the Court finds that the request is not bona fide and reasonable, the Court would be justified in forfeiting the defendants' right to file written statement."
This provisions has been inserted in 1976 amendment conferring powers upon the Court to hold the allegations and averments in the plaint as admitted and pronounce judgment if the defendant fails his pleadings in answer to the plaint as provided in sub-rule (1). The expression used is "pronounce judgment" and when so pronounced, sub-rule (4) enjoins:-
"(4). Whenever a judgment is pronounced under this rule a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."
11. Therefore, when Court exercises its power under sub-Rule (5) it pronounces judgment. Similar is the case when court applies provisions as contained in sub-Rule (10). It is a judgment as described in section 2, sub-section (9) of the Code of Civil Procedure and it has to be considered differently than the passing of the ex-parte decree under Order IX, Rule 6 of the Code of Civil Procedure. Sub-rule 6(i) of Order IX provides:-
"Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then
(a) If it is proved that the summons was duly served, the Court may make an Order that the suit be heard ex-parte;"
12. The fundamental distinction in two provisions namely of Order VIII, Rules 5 and 10 of the Code of Civil Procedure on one hand and Order IX, Rule 6 of the said Code on the other is clear from the plain reading of the same. The Judgment pronounced under Order VIII, Rule 5 or 10 cannot be equated with ex-parte decree passed under Order IX, Rule 6 of the Code of Civil Procedure.
13. I will now make reference to two decision of our High Court directly on the point referred to by the plaintiffs. First is in case of Rashtriya Chemicals and Fertilizers v. Ota Kandla Pvt. Ltd., . In the said matter the decree was passed under the provisions of Order VIII, Rule 10 of the Code of Civil Procedure because of the failure on the part of the defendants to file written statement. The defendant made application under Order IX, Rule 13 for setting aside the decree and my brother Judge in the said judgment has held the application made under Order IX, Rule 13 was not maintainable.
14. The second decision is date 20th February, 1993 of my brother judge Shri Kapadia in Notice of Motion No. 2810 of 1990 in Suit No. 3418 of 1987, Central Bank of India v. M/s. Viram Ladha and Company and others. The judgments were pronounced under provisions of Order VIII, Rule 5 of the Code of Civil Procedure and it is held that applications made for setting aside the ex-parte decree under Order IX, Rule 13 of the Code of Civil Procedure was not competent.
15. I may refer to the earlier decisions of this Court in the case of Sriram v. Sriram, A.I.R. 1936 Bombay page 285 wherein it is held that the provisions as contained in sub-Rule (5) of Order VIII have to be construed strictly and if there is no pleading as defendant denying allegations in the plaint, the consequences must follow.
16. However, Mr. pherwani has referred to two decisions, one in the case of L.G. Nagar Co-operative Housing Society Limited v. Rajendra Construction Company, reported in G.L.R. 1993, page 420 and in the case of N. Jayaraman v. M/s. Glaxo Laboratories (I) Limited, , wherein contrary view had been taken and it is held that even in cases where the judgments were pronounced under the provisions of Order VIII, Rule 5 or Rule 10 of the Code of Civil Procedure, the application under Order IX, Rule 13 for setting aside the ex-parte decree will be competent. To that extent the view of the Gujarat and Madras High Court has supported the contentions raised by and on behalf of the 3rd defendant.
17. As far as this (i.e. Bombay High Court) Court is concerned, in the case of Sriram v. Sriram, as early in the year 1936 when no amended provisions of Order VIII was in operation and various provision which have been introduced in the year 1976 were not there, has taken a very strict view of the matter as indicated earlier considering the legal provisions on the point which have been discussed, hereinabove and further in of the facts that the said earlier view has which has been followed consistently by this Court, as it reflected from the two decisions referred to earlier, I do not find any reason to deviate or depart therefrom and I express my respectful concurrence thereto.
18. As explained earlier, particularly after the amendment in the Code of Civil Procedure, in the year 1976 certain provisions have been made very strict for obvious reasons. At some time the discretion is given to the Court to exercise its power judicially. For instance, if the Court invokes the provision under Order VIII, Rule 5 or Rule 10 of the Code of Civil Procedure, then the Court is not supposed to exercise the same mechanically. The Court will certainly to into the merits of the case as made out in the plaint and consider the same. Even in the absence of the written statement, if the defendant happens to be present in the Court hen he has been given right of audience. He can address a Court and he can also cross-examine the plaintiff and the Court allows the same to the limited extent. It is thus clear that the Court does not exercise the power mechanically.
19. Coming to the matter herein, it will be noticed that the Judgment has not been pronounced mechanically because the written statement was not filed or some of the defendants were absent. The Court has considered the merits of the matter and has received the original documents and on being satisfied the merits of the suit claim has proceeded to pronounce the judgment. Therefore, since it is a judgment pronounced under provisions of Order VIII, Rule 5 of the Code of Civil Procedure, the application made under Order IX, Rule 13 of the Code of the Civil Procedure for setting aside the same is not maintainable. The application, therefore, has to be dismissed on this ground alone.
20. Even otherwise on merits also, I do not find any substance. 3rd defendant has miserably failed to explain his absence on the day when the judgment was pronounced so also his nonfiling of the pleadings/written statement although ordered in the year 1986.
21. Therefore, the application made has to be dismissed.
ORDER Notice of Motion dismissed with costs to the plaintiffs.
Issuance of certified copy is expedited.