Arijit Banerjee JUDGMENT
Arijit Banerjee, J.
1. This application has been taken out by the defendant for recalling of a decree for Rs. 26,54,355.74 along with pendente lite interest at the rate of 18 per cent per annum and interest on judgment at the rate of 12 per cent per annum. By the said decree costs assessed at Rs. 60,000/- was also awarded in favour of the plaintiff.
2. The said decree was passed when the suit appeared in the undefended list in view of the fact that the defendant did not enter appearance in the suit as certified by the department of this Court. It is not in dispute that the writ of summons was duly served on the defendant.
3. The defendant/petitioner contended that immediately on receipt of the writ of summons, he engaged one Manoj Malhotra, Learned Advocate to represent him in the above suit. He further contended that his left arm was amputated from below the elbow at an early age and he has also been suffering from Buccal Mucosa (said to be a form of carcinoma) since 2013. He has undergone treatment at Tata Medical Centre, Calcutta and Bombay, as also other hospitals in Calcutta. He has to undergo constant treatment for his illness to prevent it from turning malignant. Due to his ailments, he has to travel frequently to Bombay and visit different medical practitioners at Calcutta for consultation and treatment. For these reasons his business is suffering and he is unable to attend to his other affairs. Having engaged an Advocate and paid his fees and having given complete instructions to him, the petitioner reasonably believed that the learned Advocate would take all necessary steps to protect the petitioner's interest in the suit. From time to time, the petitioner made enquiries with the learned Advocate and was told that the suit had not been taken up for hearing and the learned Advocate assured him that he would be duly represented when the suit is heard. In those circumstances the petitioner was shocked to receive a letter dated December 17, 2016 whereupon he first came to know that the suit has been decreed and the decree had been put in execution. In a nutshell these are the reasons advanced by the defendant as to why he could not contest the suit.
4. The defendant's further case is that he has a complete defence to the plaintiff's claim. The plaintiff and the defendant used to maintain a mutual and running account. The defendant used to supply MS Channels and Plates to the plaintiff as per the requirement of the latter. On a true and correct accounting, a sum in excess of Rs. 16 thousand would be due and payable by the plaintiff to the defendant.
5. The plaintiff has denied each and all the averments made by the defendant in his recalling application. Learned Advocate for the plaintiff has raised strong doubts as to whether at all the defendant briefed Mr. Manoj Malhotra, Advocate to defend his case. She submitted that no satisfactory explanation has been furnished for approaching this Court about one year after passing of the decree. According to her, the grounds stated by the defendant do not constitute sufficient cause for his non-appearance when the suit was decreed ex parte.
6. The plaintiff has also filed a supplementary affidavit. To such affidavit, the plaintiff has annexed various documents downloaded from internet showing that the defendant carries on business through the instrumentality of a private limited company called BWN Alloys Pvt. Ltd. of which the defendant and his wife are the only shareholders. The plaintiff has also annexed to the said affidavit balance-sheets of the said limited company as on 31 March, 2015 and 31 March, 2016 as also profit and loss accounts. Referring to such documents, learned Advocate for the plaintiff submitted that the defendant is actively pursuing business activities and his illness has not stood in the way of doing so. Hence, the plea of the defendant that his business is suffering due to his ailments and he is unable to attend to his business is specious and false. Learned Advocate submitted that although it is unfortunate that the defendant may be suffering from a form of carcinoma, the same has not prevented him from carrying on commercial activities on a full scale. By highlighting his ailment, the defendant is only trying to invoke the sympathy of this court.
7. Learned Counsel also disputed the submissions made by the learned Advocate for the defendant on the merits of the plaintiff's claim. She referred to certain documents on record and submitted that the plaintiff's claim is as good as admitted by the defendant.
Court's View:-
8. At the outset I make it clear that while deciding the present application, I am not concerned with the merits of the plaintiff's claim or with the genuineness of any counter-claim of the defendant. This is essentially an application under O. 9 R. 13 of the Code of Civil Procedure and the merits of the claims and counter-claims of the parties are not really germane for the purpose of deciding such application.
9. The portion of O. 9 R. 13 of the CPC which is material for the present purpose reads as follows:-
"R. 13. Setting aside decree ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
Going by the aforesaid provision, an ex parte decree may be set aside if the Court is satisfied that the writ of summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was taken up for hearing. Admittedly, the writ of summons in the present case was duly served on the defendant. Hence, the only ground available to the defendant is one of sufficient cause for his non-appearance.
10. Learned Advocate for the defendant relied on three decisions of the Hon'ble Apex Court. Firstly, he relied on the decision in the case of Tea Auction Ltd. v. Grace Hill Tea Industry, MANU/SC/8494/2006 : AIR 2007 SC 67. He relied on paragraphs 12 and 16 of the said decision which read as follows:-
"12. In G.P. Srivastava v. R.K. Raizada & Ors. [MANU/SC/0148/2000 : (2000) 3 SCC 54], a similar question came up for consideration. A Division Bench of this Court opined that the provision under Order IX Rule 13 of the Code of Civil Procedure should receive a broad construction and no hard and fast guidelines can be prescribed. The courts have a wide discretion to set aside an ex parte decree on satisfying itself as regards existence of a "sufficient cause", opining :
"The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."
16. Order IX Rule 13 of CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith. But, it would not be correct to hold that no error has been committed by the Division Bench in holding that the learned Single Judge did not possess such power. The learned Single Judge exercised its discretionary jurisdiction keeping in view that the matter has been disposed of in fact finally at the interim stage at the back of defendant and it was in that view of the matter a chance was given to it to defend the suit, but, then the learned Single Judge was not correct to direct securing of the entire sum of Rs. 37 lakhs in the form of bank guarantee or deposit the sum in cash. The condition imposed should have been reasonable. What would be reasonable terms would depend upon facts and circumstances of each case."
Learned Counsel also relied on the decision of the Hon'ble Apex Court in M.K. Prasad v. P. Arumugam, MANU/SC/0398/2001 : AIR 2001 SC 2497, in support of his submission that the expression 'sufficient cause' in Sec. 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays should be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Learned Counsel relied on paragraph 9 of the judgment which reads as follows:-
"9. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well."
The third judgment of the Hon'ble Apex Court that learned Counsel relied on is in the case of Vijay Kumar Madan v. R.N. Gupta Technical Education Society, MANU/SC/0377/2002 : (2002) 5 SCC 30. In that case the Hon'ble Apex Court in the context of O. 9 R. 7 of the CPC observed in paragraphs 7 and 8 of the judgment as follows:-
"7. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar and Ors., MANU/SC/0013/1963 : AIR (1964) SC 993, that on an adjourned hearing, in spite of the Court having proceeded ex-parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and reopen the proceedings from the date wherefrom they became ex- parte so as to convert the ex-parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.
8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed tune or recall for cross examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous. That apart, the order of the trial court dated 9.1.1980 suffers from another infirmity of vagueness and want of clarity. In fact, during the course of hearing, the learned counsel for the parties tried to place their own respective interpretation certainly divergent to each other, on the order of the High Court as to what it means, that is, whether the trial court directed to pay all the arrears of monthly lease and the amount being deposited along with filing of the written statement or for that month only and whether for future too, but we do not propose to deal further with this aspect as it is unnecessary. That condition in the order of trial court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice. But in view of the subsequent events brought to our notice and the statement made by the learned counsel for the defendants-respondents during the course of hearing, the following directions are made:-
1. The ex-parte order dated 2.5.98, and the judgment and decree of the trial court based on the ex-parte order dated 2.5.98 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial court.
2. As the plaintiffs have secured the possession of suit premises and the defendants-respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff-appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff- appellants have secured possession over the tenancy premises.
3. Such of the witnesses as have already been cross examined by the defendant-respondents shall not be recalled for further cross examination, in view of that right having been given by the learned counsel for the defendant-respondents before this Court. Such of the plaintiffs' witnesses as were not cross examined, shall be recalled for cross examination at the cost and expenses of the defendant-respondents.
4. The parties shall have the liberty to lead such other evidence as they propose to do.
5. The trial court may refuse to grant any avoidable adjournment at the trial which may have the effect of delaying the hearing of the suit. The suit shall be expeditiously heard and decided. The learned counsel for the defendant-respondents has assured that the defendants shall co-operate therein.
6. To avail the benefit of the orders passed by the High Court and this order the defendants shall pay cost of Rs. 50,000 to the plaintiff-appellants within four weeks as a condition precedent."
11. The power of the Court under O. 9 R. 13 of the CPC is a discretionary power. As the Hon'ble Apex Court observed, the power should be exercised judiciously. No doubt the term 'sufficient cause' should be construed liberally but that does not mean any and every cause should be accepted as a sufficient cause.
12. The emphasis of the defendant's submission has been on his illness. I have gone through the medical prescriptions and medical test reports annexed to the petition. I find that almost all the hospitals and medical centers that the defendant attended i.e. G. D Hospital & Diabetes Institute, Columbia Asia, Suraksha, Belle Vue Clinic and Tata Medical Centre, New Town, Calcutta, are all in Calcutta. The defendant has annexed Xerox copy of a registration card issued by the Tata Memorial Centre, Department of Oncology, Mumbai. However, no document has been brought on record to show that the defendant underwent any treatment at the Bombay Tata Memorial Centre for any appreciable period of time or at all. The doctors whose prescriptions the defendant has annexed are all based in Calcutta. In other words, the documents on record disclosed by the defendant do not support the case that the defendant had to leave Calcutta frequently for treatment.
13. Further it also appears from the documents annexed by the plaintiff to its supplementary affidavit, authenticity whereof has not been disputed by the defendant, that the defendant has been carrying on business as Director and Shareholder of BWN Alloys Pvt. Ltd. (in short the 'said company'), quite diligently and effectively since 2011. The said company was incorporated on 10 February, 2011. The only two Directors of the company are the defendant and one Sheetal Goel, who, I am told is the wife of the defendant. The returns filed by the company reflected that for the year 2015-16 four board meetings were held which were all attended by the defendant. From the balance-sheets for the years ended 31 March, 2014, 31 March, 2015 and 31 March, 2016 it seems that the said company is doing reasonably good business. The key managerial personnel of the said company are shown to be the defendant and Sheetal Goel. From a declaration of the said company (page 32 of the plaintiff's supplementary affidavit) it appears that the long term borrowings of the company from Shruti Exports which is a proprietorship concern of the defendant is Rs. 58,53,204/- and from the defendant is Rs. 20,50,000/- aggregating Rs. 79,03,204/-. In other words, the aforesaid documents disclose that the defendant is living an active life and it is not that he is confined to his home or has been brought down altogether by his ailment so as to be incapable of attending to his business affairs, an impression that the defendant has sought to portray in the recalling application.
14. It also appears from the documents annexed to the plaintiff's supplementary affidavit that between 18 January, 2015 and 22 January, 2017, twenty six cases have been registered against a vehicle being an Ecosport - 1.5D Titanium by the Kolkata Traffic Police under the Motor Vehicles Act. The defendant is the registered owner of the said car. The cases registered are for traffic rules violation. Some of the locations where the said car is said to have violated traffic rules are C.R. Avenue/B.B. Ganguly Street, Council House Street/Hare Street/B.B. Bag, Brabourne Road, Strand Road/Canning, Clive Ghat Street, N.S. Road/Fairly Place/India Exchange Place, Kiran Shankar Roy Road, all of which are in close vicinity of the Calcutta High Court. This also raises a justifiable doubt and suspicion in the mind of the Court as regards the bona fides of the defendant's case - a doubt that the defendant could not dispel.
15. From the above I have to conclude that the defendant was not as much handicapped by his ailments as he has sought to portray himself before this Court. He has been carrying on his business activities actively. Hence, his illness could not have been a sufficient cause or any cause at all which prevented him from contesting the suit. Putting the blame on a learned Lawyer, whom the petitioner allegedly engaged in the matter and to whom he allegedly paid fees, will not do. There is no iota of evidence in support of the defendant's claim that he indeed briefed Mr. Manoj Malhotra, learned Advocate or to show that he paid fees to the said learned Advocate. No correspondence exchanged between the defendant and Mr. Manoj Malhotra has been disclosed. The case run by the defendant in the present application is not credible and I am not able to accept the same.
16. In view of the aforesaid, this application fails and is dismissed, with costs assessed at Rs. 10,000/-. Accordingly GA No. 61 of 2017 is disposed of.
17. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
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