Bombay High Court
Prime Builders vs Suman R. Bagwe.& Ors on 21 February, 2018
Author: S.C. Gupte
Bench: S.C.Gupte
MMS 1/10 (901) NMS-920-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.920 OF 2014
IN
SUIT NO.60 OF 1998
Ajit R. Bagwe ... Defendant No.2/
Applicant
In the Matter Of
M/s.Prime Builders ... Plaintiff
Versus
Suman R Bagwe And Others ... Defendants
.....
Mr.R.D.Soni a/w Mr.N.P.Wagle i/b Mr.N.P. Wagle for Defendant
No.2/Applicant.
Counsel Dr.Birendra Saraf, Counsel Mr.Mayur Khandeparkar a/w
Ms.Heena Chheda, Mr.Bharatkumar M.Jain, Ms.Karishma Mehta
i/b M/s.Hariani & Co., for the Plaintiff.
....
CORAM : S.C.GUPTE, J.
DATE : 21 FEBRUARY 2018
ORAL ORDER
. Heard learned Counsel for the parties.
2. This Notice of Motion is taken out by original Defendant No.2 for setting aside an ex-parte decree passed against him. The ex-parte decree was passed on 11 August 2009 against the Applicant herein and two others. The present application is taken out more than four years thereafter. The application is on the ground that writ of summons was not duly served on the Applicant and the delay is sought to be explained on the ground that since this is a case of non service of writ of summons, limitation would ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 2/10 (901) NMS-920-14.doc commence from the date of knowledge and that knowledge was obtained on 14 December 2013, when the Applicant's advocate, while searching the Website of this Court for Case Status Information for another pending testamentary proceeding i.e. Testamentary Suit No.16 of 2005, pertaining to the same premises as the suit premises, got knowledge of the ex-parte decree and the Execution Application taken out by the Judgment Creditors in pursuance thereof. The Applicant claims to have taken out the present application within a week of his knowledge.
3. Before we assess the merits of this application in the light of several judgments cited at the Bar in support and against the application, a few dates may be noted. The present Suit was originally filed against one Usha Bagwe. The Suit was filed in 1997. The Suit was for specific performance of a Memorandum of Understanding executed between the original Defendant -Usha Bagwe and the Plaintiff. Usha Bagwe passed away in October 2001. Thereafter her brother, Ratnakar Bagwe, who was her only surviving legal heir, was brought on record and the necessary amendments were carried out. Ratnakar Bagwe, thereafter, appeared in person at the hearing of one of the miscellaneous proceedings taken out in the present Suit. He, however, chose to remain absent on the next occasion, whereupon the miscellaneous proceeding, namely, Notice of Motion No.3011 of 2000, was allowed. Ratnakar Bagwe passed away during the pendency of the Suit. On the plaintiff's knowledge, said to have gained in October 2005, a Chamber Summons was taken out to bring on record the Defendants herein as legal heirs of Ratnakar Bagwe. The Chamber Summons was duly served on the Defendants. The service was acknowledged by the Applicant herein (proposed Defendant No.2) ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 3/10 (901) NMS-920-14.doc for himself and on behalf of two other Defendants, namely, proposed Defendant Nos.1 and 3 to the Suit. In the acknowledgment, the Applicant described himself as the Constituted Attorney of Defendant Nos.1 and 3. The Chamber Summons was allowed on 27 June 2006 and the present Defendants were brought on record. The order shows appearance on their behalf in the Chamber Summons. It is an accepted position that the same advocate appeared for these Defendants in the companion testamentary proceedings, namely, Testamentary Suit No.16 of 2005. The impleadment order directed service of amended copy of plaint on the newly added Defendants and filing of Written Statement by the newly added Defendants within a specified time of the service of amended copy of the plaint. After the amendment was carried out, the Plaintiff sought to effect service of writ of summons with amended plaint on the newly added Defendants. Two attempts of such service were made by the Plaintiff. It is not in dispute that all the Defendants reside at the same address at which service was sought to be effected. Whereas defendant Nos.1 and 3 duly received writ of summons with the amended plaint on this address, the Applicant (Defendant No.2) was unavailable on both dates and, accordingly, service could not be effected on him. The Bailiff has made an affidavit to that effect. Writ of summons was thereafter sent through RPAD to the other address of the Applicant herein, which is shown in the Cause Title of the Suit. That was around February 2008. The packet of service came back with the remark "unclaimed". An affidavit of the Bailiff to this effect is placed on record. The matter thereafter reached on 7 July 2009, when the Plaintiff was directed to file its oral evidence in the form of an affidavit in lieu of ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 4/10 (901) NMS-920-14.doc examination-in-chief together with a compilation of original documents. These directions were complied with by the Plaintiff and finally on 11 August 2009 this Court, after being satisfied as regards the effective service on all Defendants, proceeded to pass the impugned ex-parte decree against all the Defendants. Paragraph 4 of the order records that all legal heirs of the original Defendant are served but failed to appear in the Suit. More than four years after the passing of this decree, as noted above, and after purportedly making out a case for condonation of delay, also as noted above, the present application was moved by the Applicant. In the meantime, the Plaintiff had even moved for execution of the ex-parte decree and purported to serve a notice under Order 21 Rule 22 of the Code of Civil Procedure towards such execution.
4. In the backdrop of these facts, I have to consider whether ex-parte decree passed on 11 August 2009 needs to be set aside. What I have to consider is, whether the Applicant has satisfied the Court that the summons was not duly served on him or that he was prevented by any sufficient cause from appearing when the Suit was called on for hearing. I find that the Applicant has not satisfied either of these conditions. My reasons are as follows. The provisions concerning issue and service of writ of summons are contained in Order 5 of the Code of Civil Procedure. Order 5 inter alia provides for the modes of service in various cases. This Court has also made rules in this behalf, namely, Bombay High Court (Original Side) Rules, which make provisions, in Chapter 6 thereof, for writ of summons. One of these rules, namely, Rule 84, makes a provision regarding proof of service of summons. Such ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 5/10 (901) NMS-920-14.doc service usually stands proved if a vakalatnama is filed on behalf of the noticee defendant. It is also permissible for the defendant to waive the service of writ of summons through himself or his advocate, in which case the proof of service is dispensed with. A Division Bench of this Court in the case of Meena Ramesh Lulla Vs. Omprakash A. Alreja1 has considered the purpose and object of service of writ of summons. The Division Bench has held that the purpose and object of such service is only to give notice to the defendant of the plaintiff's claim. It enables the defendant to appear and answer the plaintiff's claim. The Division Bench held that it is not an ornamental or a ritualistic requirement. The Division Bench further observed that:-
"When the object of notifying the Defendants of the Plaintiffs' claim is otherwise served, the service of the writ of summons would become a redundant formality taking up needless judicial time in passing directions for such service and causing avoidable expenses to the Plaintiffs in serving summons. It is, therefore, that when Defendants appear upon notice of the Plaintiffs to defend an application for ad-interim or interim relief either personally or through their Advocate they generally waive service."
The Division Bench also held as follows :-
"The evidence of the vakalatnama of the Advocate of the Defendant itself would, therefore, show service of the summons upon the Defendant. The appearance by the Defendant at any stage of the suit is further such evidence. Filing of the affidavit in reply in an interim application is also such evidence. Consequently, when a suit comes up for hearing it would be material to see whether the writ of summons is actually served which can be evidenced by an affidavit of service, failing which it would be seen by the Vakalatnama of the Defendants' Advocate, the appearance of the Defendant, or any other proceeding filed or taken by the Defendant in the suit. Once any of these is shown the formal service of the writ of service cannot be insisted upon."
1 Appeal No.616 of 2011 decided on 21 September 2011 ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 6/10 (901) NMS-920-14.doc To the same effect are the observations of the Supreme Court in the case of Sunil Poddar Vs. Union Bank of India 2. The Court in that case was construing the amended provisions of Rule 13 of Order 9 in the light of the requirement of service of writ of summons under Order 5 of the Code of Civil Procedure. The Court held as follows:-
"It is, therefore, clear 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 5 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 ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code. Since the said provision applies to the Debts Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before DRT, they had no sufficient time to appear and answer the claim of the plaintiff Bank and on that ground, ex parte order deserves to be set aside."
These dicta make it clear that in an appropriate case, proof of service of writ of summons may be dispensed with if the circumstances of the case show that the defendant not only had notice of the suit but in fact appeared in the suit, even if such appearance be in a miscellaneous proceeding arising in the course of the suit.
2 (2008) 2 Supreme Court Cases 326 ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 7/10 (901) NMS-920-14.doc
5. Let us now consider the facts of our case. In our case, when the Chamber Summons was taken out for impleadment of the present Defendants in place and stead of the sole Defendant, who had expired, the Defendants were all represented by an advocate. Learned Counsel for the Applicant is technically right in the sense that this appearance was at a pre-suit stage; on that date, the Defendants were not in fact impleaded as parties to the Suit. Even if it is so, what is important to note is that the advocate not only appeared for the defendants but accepted an order that upon service of amended copy of the plaint, a written statement or additional written statement should be filed on behalf of the newly added defendants. Considering that the Defendants accepted the mandate of filing of written statement in pursuance of the order passed on the impleadment application, it cannot possibly be suggested that there was a legal requirement on the part of the Plaintiff to effect a formal service of writ of summons on the newly added Defendants. The latter had practically waived the service of writ of summons. What was to be served on them was the amended plaint, of which also they really had a notice, the amendment being as per the schedule to the Chamber Summons they were appearing in. None of the Defendants including the Applicant herein chose to file any written statement. It is proved that the amended plaint was served alongwith writ of summons (though such writ of summons was not strictly necessary) on atleast Defendant Nos.1 and 3. There is abundance of material that this service would signify knowledge on the part of the Applicant herein (Defendant No.2). The Applicant herein is admittedly the Constituted Attorney of Defendant Nos.1 and 3. Defendant Nos.1 and 3 had clear notice of the amended plaint.
::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 :::MMS 8/10 (901) NMS-920-14.doc These Defendants admittedly reside at the same address as the Applicant herein. All the Defendants including the Applicant herein are represented by the same advocate in the Suit herein though at the stage of Chamber Summons. Admittedly, the same advocate was appearing for all the Defendants including the Applicant herein in a connected testamentary proceeding, being Testamentary Suit No.16 of 2005, during the relevant period, that is to say, between 2009 and 2015. All these facts cumulatively establish, by preponderance of probabilities, the knowledge on the part of the Applicant herein of the pendency of the Suit and the dates of its hearings. Though this is not a case of a mere irregularity of service, and even if we were to proceed on the basis that there was an absolute requirement of service of writ of summons on the Applicant, the rationale of the law excusing irregularity of service in terms of the proviso to Order 9 Rule 13 can very well be applied even to the facts of this case. Here is a party, who was not only aware of the filing of the suit against him but also the date of hearing of the suit and who appeared through advocate and even suffered an order for filing of written statement within a stipulated period; who went on to suffer an ex-parte decree thereafter; and who only applied for setting aside that ex- parte decree more than four years after the passing of the same and after the Plaintiff herein moved for execution of the decree. Is it then possible to say that the object of notifying him of the Plaintiff's case and allowing him to contest the same is not fully and comprehensively served. The plea of non-service of writ of summons in such a case is nothing but a convenient and tactful excuse for setting aside the ex-parte decree suffered willingly.
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6. Mr.Soni, learned Counsel for the Applicant, relies on the judgments of Grindlays Bank Ltd. Vs. The Central Government Industrial Tribunal3, Sushil Kumar Sabharwal Vs. Gurpreet Singh4 and New India Assurance Co. Ltd. Vs. Nasibunnisa Mohd.Israr Khan5 in support of his case. In Grindlays Bank case, the Supreme Court was considering an award passed after refusing to adjourn the hearing. The court treated this like an ex-parte award. The court said that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex-parte award, it is as if the party is visited with an award without a notice of the proceedings, and such award is a nullity. This case does not support the Applicant herein. In the present case, the application of the Applicant for setting aside the decree is being refused on the ground that he in fact had sufficient notice and was not prevented from appearing at the hearing due to any sufficient cause. Learned Counsel, however, submits that mere knowledge of the suit is not enough; the due service of summons must still be proved. Learned Counsel cites the case of Sushil Kumar Sabharwal (supra) in this behalf. That was a case where the High Court had refused to allow the application for setting aside ex-parte decree on the ground that the applicant knows about the suit. The Supreme Court held that the High Court had overlooked the second proviso to Rule 13 of Order 9. It is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso. Here, as we have seen above, the Applicant ought to be held as not just having the notice of the suit but also of the date of hearing after practically waiving the service of writ of summons. The 3 AIR 1981 SUPREME COURT 606 4 (2002) 5 Supreme Court Cases 377 5 Civil Application No.1979 of 2011 decided on 14 October 2011 ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 ::: MMS 10/10 (901) NMS-920-14.doc question considered in the case of Nasibunnisa Mohd. Israr Khan (supra) was whether postal intimation of "unclaimed" amounts to a good service. There is no gainsaying that it does not. But that is not how the present application is being refused.
7. Notice of Motion is dismissed. No order as to costs.
8. Learned Counsel for the Applicant prays for stay of execution. He did not have stay all the while. After hearing and dismissing the Notice of Motion comprehensively, there is no question of granting any stay. Request is rejected.
(S.C. GUPTE, J.) ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 00:59:51 :::