1. Not on board. By consent, the Notice of Motion is taken up for hearing and final disposal.
2.The Notice of Motion as currently framed is thoroughly misconceived. It says that there is an ex parte order of SJ Vazifdar J (as he then was) of 7th October 2003, a copy of which is at page 33. This is said to be 'ex parte'. It is argued that it is required to be set aside because there was no Notice of Motion filed for a judgment for want of written statement. The argument is misconceived and overlooks Rule 89 of the Bombay High Court (Original Side) Rules. I have already dealt with this aspect of the Rules in a recent judgment in Placido Thomas Aguiar v Elizabeth Lucy D’Souza & Ors. (Notice of Motion No. 1554 of 2017 in Suit No. 241 of 2010, decided on 26th February 2018).
3. The next argument raised is that the order is to be set aside because the writ of summons was never served. The appearance in that order shows that an Advocate was engaged for all the Defendants. That the Advocate was engaged is actually not disputed. Defendant No. 1 today urges that the vakalatnama in favour of that Advocate was executed by a person who claimed to be entitled to do so on the basis of a Power of Attorney. This person, one Mr K Shrinivas Rao, was, Defendant No. 1 now says, never authorized to represent the 1st Defendant. He held no Power of Attorney.
4. Annexed to the Affidavit in Reply at page 116 is a copy of the letter from M/s. Narayanan & Narayanan, Advocates, forwarding a photocopy of the Power of Attorney in question dated 29th April 1993 said to have been executed by the 1t Defendant in favour of this K Shrinivas Rao. On page 18 of the Power of Attorney (page 134 of the paperbook) is the typed name of the Chairman and Managing Director. There is a rubber stamp of the 1st Defendant. There is a circular common seal of the 1st Defendant. Both have signatures. The Power of Attorney said to have been notarized in Mumbai and the seal of the Notary is also visible. No steps have been taken whatsoever by the 1st Defendant at any time to have this document cancelled. We will leave that aside.
5. Mr Thorat for the 1st Defendant proceeds on the assumption that there was in fact such a Power of Attorney and there was in fact a validly executed vakalatnama by the Constituted Attorney. His submission is that even if assuming that is so, Rule 79 of the Bombay High Court (Original Side) Rules requires personal service of the writ of summons on a defendant even if appearance was entered on his behalf by an Advocate. Rule 79 says:
'R.79. Undertaking by advocate to accept service.- A Writ of Summons need not be served on a defendant personally, if his Advocate undertakes in writing to accept service, and to file a Vakalatnama.'
6. On the face of it, the interpretation placed of this Rule is incorrect. This speaks of a waiver of the requirement of serving the writ of summons personally if the Advocate undertakes in writing to accept service of that writ of summons and to file a vakalatnama. This obviously contemplates a stage before the vakalatnama is in fact filed. Once the vakalatnama is filed, there is no question of having to thereafter serve a party personally. The form of the vakalatnama in fact says to the contrary and by virtue of the vakalatnama the Advocate is not only empowered but required to accept service on behalf of the person for whom he filed the vakalatnama. Otherwise, the filing of a vakalatnama is completely meaningless.
7. The argument completely overlooks the provisions of our Rules on both the Original Side and the Appellate Side and in particular Rule 51 which is in mandatory terms and speaks of what is to happen after a vakalatnama is filed, viz., that once an Advocate has filed his vakalatnama in a suit or a matter, he 'shall' accept service on behalf of his client of all processes issued in the suit or matter until he is discharged.
8. Mr Thorat bases his construct on a reading of the decision of a Division Bench in Tardeo Properties Pvt Ltd v Bank of Baroda (2007 (5) Bom CR 557 : 2007 SCC OnLine Bom 614).I regret his interpretation of that judgment does not commend itself. The question there was entirely different. In the present case, the vakalatnama was filed for representation in the suit itself. The question in Tardeo Properties before the Division Bench involved a question of appearance entered at an interlocutory stage and whether this could carry forward to appearance or engagement in the suit. These are conceptually two different things. Nobody here suggests that a vakalatnama was entered by the 1st Defendant in the Notice of Motion, and that in any case is wholly impermissible because a vakalatnama is to be filed in the parent proceedings and not in every interlocutory proceeding, because that way lies merely chaos.
9. In fact, paragraph 4 (of the SCC Online Report) of the Tardeo Properties decision cuts completely against the argument now being made. There, it was argued by the party seeking to set aside the decree that:
… even if the Advocate had filed appearance on behalf of the defendants in the suit itself, it would merely enable the plaintiffs under the Original Side Rules of the High Court to serve the writ of summons upon the Advocate concerned but under no circumstances there can be either implied service of the writ of summons or waiver of the writ of summons merely by filing the appearance or vakalatnama by the Advocate for the parties in the proceedings.
10. The entire conspectus of the case there was different. Specifically, the Division Bench was asked to consider whether the time of 12 weeks to file the written statement would start from the date of filing of the vakalatnama, irrespective of whether or not the writ of summons was served. Now, once the applicant accepted that the writ of summons could be served on the advocate, all that remains to be seen is if this was done.
11.Paragraph 3(xi) of the Affidavit in Reply at pages 62 and 63 of the paper book makes it clear that writ of summons was in fact served on the advocate for Defendants Nos. 1 and 1A by the bailiff attached to the office of the Sheriff of Mumbai. There is an affidavit of service dated 18th August 1999 made by the bailiff’s clerk to this effect. A copy is annexed as Exhibit 'L' to the Affidavit in Reply at pages 139 to 141 of the paper book. I have checked personally, and the original Affidavit in Support is also on file.
12. There is no Affidavit in Rejoinder. The averment in the Affidavit in Reply is without traverse.
13. Indeed, this entire question of alleged non-service of the writ of summons is a red herring. What is being alleged is that the Power of Attorney used was defective or bad. But no action is said to have been taken in that behalf against the Constituted Attorney who acted on it, or to cancel that Power of Attorney. And just who is or was this K Shrinivas Rao? He was no stranger to 1st Defendant. He was, till 1989, a director of the 1st Defendant and then a partner of Defendant No.1A at least until 20th July 1994, when he made an affidavit of that date in response to the Plaintiffs’ Notice of Motion for interim and ad-interim reliefs. That K Shrinivas Rao made these claims is accepted by the 1st Defendant in the Affidavit in Support of the present Notice of Motion. Those claims are, however, not denied. Beyond claims to being ‘shocked’, there is not a thing of substance said by the 1st Defendant even today.
14. The reliance on Tardeo Properties is, therefore, also misconceived because it was accepted in that case that the mere filing of a vakalatnama was not enough to start the time for filing a written statement; a writ of summons had to be served on either the defendant or his advocate; and where the advocate had entered appearance, the writ of summons could validly be served on him. Tardeo Properties is, therefore, against the present applicant on all counts.
15.Incidentally, Defendant No.1A attempted the same gambit when it filed Notice of Motion 1622 of 2007 to set aside the ex parte decree. SJ Kathawalla J dismissed that Notice of Motion on 2nd March 2009. An appeal failed on 4th March 2010.
16. Indeed, in this day and age what the 1st Defendant suggest is, in my view, to move exactly in the opposite direction from where we should be going. We need to simplify our processes, our systems and our procedures. They are already complicated enough as it is. We have absolutely no cause or call to complicate them further or to make them any more intimidating than they already are. The real challenge in every Court now is to find mechanisms by which we can restore to the litigants who come before us some measure of dignity and self-respect; for this system of ours does nothing except dehumanize the ordinary litigant and force him or her into needless self-abnegation. We insist on difficult and arcane procedures. Our systems move with infuriating slowness - glaciers melt faster than service through the Sheriff’s office. When it comes to parties overseas, we hold to a wholly unreasonable mistrust of couriers, email and other high-speed services, never mind that this is the way the world does business before being forced into court.
17. What is it that the 1st Defendant says? There may have been a Power of Attorney, one acted upon, never challenged and against the person to whom it was given no action taken. Ignore that. The Power of Attorney may have seals and stamps and signatures. Ignore all of them. An advocate may have entered appearance on the basis of the vakalatnama signed by the person who held the Power of Attorney. Never mind. The advocate may have been served with the writ of summons. That counts for nothing. Despite all this, the 1st Defendant should have been served. It was there, waiting to be served, after all. That aura of innocence wears thin, and is singularly without appeal of any kind.
18.Here is the best part. Vazifdar J’s order, in paragraph 7 (page 35) notes that the advocate tendered a letter dated 20th December 2003 from the advocate to Defendants Nos. 1 and 1A. The advocate wrote to the 1st Defendant (and to Defendant No.1A) for instructions. Paragraph 7 (page 36) notes that the advocate was without instructions. Therefore, the 1st Defendant’s advocate was served with the writ of summons. He sought instructions from the 1st Defendant. The 1st Defendant gave none. And now the 1st Defendant
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says, ignore all that; never mind. The 1st Defendant should have been served, and we must all go back to some antediluvian era. The suggestion is not just unacceptable. It is preposterous. 19. The Power of Attorney, I am told, is without a supporting resolution of the 1st Defendant, a company. That is wholly irrelevant, and is a matter between the 1st Defendant and its Constituted Attorney. There is something called ostensible authority, even if the directors of the 1st Defendant have never heard of it; and it attaches when one of them signs a document; it attaches when one of them puts the company’s stamp on it; and it most emphatically attaches when the company’s common seal is on the document. 20. The 1st Defendant’s submission is one that needs to be rejected not just as a matter of law but also because what it advocates is patently inequitable. Apart from anything else, it puts technical procedure, in this case entirely incorrectly invoked, above what is just. That is something I am not persuaded ever to do. 21. The Notice of Motion is dismissed. No costs. 22. All interim orders stand vacated forthwith.