1. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
2. The writ jurisdiction of this Court is invoked against the order dated 08.07.2013 passed by the learned Judge of the City Civil Court, Greater, Mumbai, by which order, Notice of Motion No.427 of 2013 filed by the Petitioners herein came to be dismissed. The Petitioners are the original Defendants in the suit in question being Summary Suit No.4914 of 2012 filed by the Respondent herein under Order XXXVII of the Code of Civil Procedure for recovery of a sum of Rs.6,06,110/- towards the supply of petroleum products to the Petitioners between the period 2006 to July 2011. In the said suit, summons came to be served on the Petitioners. The Vakalatnama on behalf of the Defendants came to be filed on 10.12.2012. The same was taken on record and marked as Exh.2. The suit was thereafter adjourned to 4th February, 2013 for directions. It seems that on 28th December, 2012, a summons for judgment was moved before the Trial Court by the Plaintiff and leave was sought to register the same. The Trial Court passed an order directing the Plaintiff to register the Summons for Judgment on or before the next date. On behalf of the Plaintiff, a request was made for pre-poning of the date from 04/02/2013. The date was accordingly preponed to 09.01.2013. On the said date i.e. 09.01.2013 the Summons for Judgment was made returnable on the Plaintiff's undertaking that the date would be communicated to the Defendants. It appears that when attempt was made to serve the Summons for Judgment on the advocate for the Defendants on 26th December, 2012, the office of the advocate was found locked and therefore, the same was served on the Defendants on 28.12.2012. When the suit came up before the Trial Court on 09.01.2013, the affidavit of service evidencing the service effected on the Defendants was filed in the Court and was marked as Exh.3. The Summons for Judgment was adjourned for hearing to 14.01.2013 at 2.45 p.m.. In view of the fact that no appearance put up on behalf of the Defendants on 14.01.2013, the Summons for Judgment came to be made absolute and a decree was passed in the following terms :'
1. Suit is decreed with cost.
2. The defendant nos.1 and 3 shall jointly and severally do pay a sum of Rs.5,33,763/- to the plaintiff within one month from the date of this order.
3. The defendant nos.1 and 3 shall pay interest @ 18% p.a. for principal sum of Rs.5,33,763/- to the plaintiff from the date of filing suit till realisation of entire amount.
4. The defendant Nos.2 and 3 shall jointly and severally pay Rs.72,347/- to the plaintiff within one month from the date of this order.
5. The defendant nos.2 and 3 shall also jointly and severally do pay interest @ 18% p.a. on principal sum of Rs.72,347/- to the plaintiff from the date of filing suit till realisation of entire amount.
6. Court fee be refunded as per rules.
7. Decree be drawn accordingly.'
3. It is the case of the Defendants that when another Summary Suit bearing No.4913 of 2012 filed by one M/s. Manor Auto Service against the Defendants was on board of 31.01.2013 that the advocate for the Plaintiffs, who is also appearing for the Plaintiffs in the said suit made a statement that a decree has been passed in the present suit and after the hearing in the said suit filed by the said M/s. Manor Auto Service concluded, furnished a xerox copy of the judgment passed in the present suit along with his covering letter dated 13.01.2013. The Defendants thus having acquired knowledge of the decreeing of the Summary Suit No.4914 of 2012, filed Notice of Motion No.427 of 2013 for setting aside the said decree. In the affidavit in support of the Notice of Motion the fact that the Summons for Judgment was served upon the Defendants on 28.12.2012 was accepted. However, it was stated that when their advocate was sought to be contacted by the Defendants, it was found that he was out of station in view of the fact that there was Christmas Vacation. It has been averred in the said affidavit in support that in view of the fact that the Partner – Proprietor Mr. Purushottam Mane i.e. the Respondent No.3 herein was unwell on account of which he was advised bed rest from 01.01.2013 to 22.02.2013 that the papers could be entrusted to the advocate only in the last week of January, 2013. It was further averred that since the returnable date of Summons for Judgment could not be intimated to the advocate, the advocate could not appear on 09.01.2013 as he was under the impression that the suit would appear on board as per the date granted on 10.12.2012 i.e. 04.02.2013. It was averred that both the Applicants i.e. the Defendants could not appear for the reasons aforestated which resulted in the decree being passed in the suit. It has lastly been averred that the Defendants have a good, valid and substantial case on merits to the alleged claim of the Plaintiffs and the suit involves triable issues. In the affidavit in support, a reference is made to another Summary Suit bearing No.4913 of 2012 filed by the said M/s. Manor Auto Service. It is therefore, prayed that the Court be pleased to set aside the exparte decree dated 14.01.2013. The said Notice of Motion was replied to on behalf of the Plaintiffs. The reasons mentioned in the affidavit in support as to why the Defendants were unrepresented on 09.01.2013 and thereafter on 14.01.2013 when the decree has been passed is questioned. The ground made out in the affidavit in support of the illness of the Partner-Proprietor is questioned on the ground that there are other persons who are concerned with the Defendant Nos.1 and 2 and who could have taken steps to see that the Defendants are represented. The Plaintiff therefore, prayed for rejection of the Notice of Motion filed for setting aside the decree.
4. The Trial Court considered the said Notice of Motion and by the impugned order dated 08.07.2013 has dismissed the same. The Trial Court did not deem it fit to accept the ground of illness of Mr. Purushottam Mane firstly for the reason that there may be other persons who may be working with the Defendant Nos.1 and 2 who could have informed the Advocate and that since the original of the medical certificates were not produced, the reason mentioned therein could not be accepted. The Trial Court was of the view that the Defendants have not proved the special circumstances which prevented them from appearing in the Court or the circumstances which were beyond their control. The Trial Court in fact has recorded a finding that the material on record does not establish that the circumstances were beyond the control of the Defendants which prevented them from appearing and attending the suit after service of the Summons for Judgment. The Trial Court in respect of the medical certificates observed that for want of the original medical certificate, it is difficult to believe that Petitioner No.3 was seriously ill and was unable even to contact his advocate on telephone. The Trial Court as indicated above has by the impugned order dated 08.07.2013 accordingly, dismissed the motion.
5. Heard the learned counsel for the parties.
6. The learned counsel appearing on behalf of the Petitioners Mr. Kapse would reiterate the case of the Petitioners urged before the Trial Court. The learned counsel would contend that in view of the fact that the advocate of the Defendants was under the impression that the suit would come up on 4th February, 2013 as originally scheduled, he did not appear in the suit on 09.01.2013 and on 14.01.2013 when it came to be decreed as the Defendants had not informed him of the service of the Summons for Judgment. The learned counsel would contend that in view of the fact that the owner and proprietor of the Defendants was unwell, he could not contact the advocate and after having acquired knowledge of the decree passed in the instant suit, the instant Chamber Summons has been filed immediately thereafter on 4th February 2013. The learned counsel would therefore, contend that it could not be said that the Defendants were prosecuting the proceedings in a negligent or careless manner as the Defendants had also filed their Vakalatnama in the suit within the time which is prescribed for filing of a Vakalatnama in a Summary Suit. The learned counsel would contend that apart from the reasons which are appearing in the affidavit in support, the Defendants have an excellent case on merits as in another Suit i.e. Summary Suit No.4913 of 2012, based on the same notice and therefore involving identical facts, another Learned Judge of the City Civil Court had granted conditional leave to the Defendants. The learned counsel would contend that both the suits i.e. instant suit and the second suit No.4913 of 2012 being based on the same notice dated 15th October, 2012 are therefore virtually based on the same set of facts. It was therefore, the submission of the learned counsel that even on merits, the Defendants have a good case and if that be so, in view of the judgments of the Division Benches of this Court reported in 2008(6) Mh.L.J. 797 in the matter of MadhusudhanShrikrishna Vs. M/s. Emkay Exports, Mumbai and others and the judgment reported in 2007(5) Mh.L.J. 752 in the matter of GovindbhaiDayal Mange Vs. Vijaykumar Balkishan Agarwal and another. The decree which has been passed by the Trial Court is required to be set aside. The learned counsel would contend that since in a cognate matter being Company Petition No.529 of 2014 the Defendants have been directed to deposit the decreetal amount as also the amount claimed in the second Suit filed by the said M/s. Manor Automobiles the interest of the Plaintiff is protected. The learned counsel also sought to make submissions revolving around the triable issues which arise in the suit. In support of which contention, he sought to place reliance on the judgment of learned Single Judge of this Court reported in 2003(3) Mh.L.J. 932 in the matter of Sun N Sand Hotel Limited Vs. M/s. V. V. Kamat, HUF.
7. Per contra, learned counsel Mr. Pai appearing for the original Respondent i.e. Respondent herein would support the impugned order. The learned counsel would submit that the Defendants have not satisfied the test of special circumstances which are required to be shown by them and the reason put forth in the affidavit in support cannot qualify as a special circumstance. The learned counsel in reply to the contention urged that in another suit, conditional leave has been granted would contend that the cause of action for filing the said suit is different as also the set of facts on which the second suit was based. The learned counsel in support of his contention submitted that the Defendants have not satisfied the special circumstances test and has sought to place reliance on the judgment of a learned Single Judge of this Court reported in AIR 2003 Bombay 496 in the matter of Indian Express Newspapers (Bombay) Ltd., Vs. Shiv Kapooria and others. The learned counsel would contend that even on merits the Defendants have no case and the defences which they are now raising can be said to be moonshine and therefore, the Defendants are not entitled for the decree being set aside.
8. Having heard the learned counsel for the parties, I have considered the rival contentions, the issue i.e. raised in the above Petition is as regards the entitlement of the Defendants for the decree being set aside by virtue of the application filed by them under Order XXXVII Rule 4 of the Code of Civil Procedure. A reading of the provision discloses that a Defendant who seeks setting aside of a decree has to make out special circumstances for the same. The requirement of Order XXXVII Rule 4 can be said to be enunciated by the judgment of the Division Benches of this Court in MadhusudhanShrikrishna's (supra) case and GovindbhaiDayal Mange's (supra) case. It would therefore, be opposite to refer to the said Judgments. Insofar as MadhusudhanShrikrishna's case (supra) is concerned, the Division Bench has held that apart from showing sufficient cause for not entering an appearance and applying for leave to defend the suit, it is also necessary for a party to apply under Order XXXVII Rule 4 to make out the availability of a good defence in answer to the claim put forth by the Plaintiff and that is the import of the expression 'special circumstances'. The Division Bench further observed that a bonafide lapse on the part of the party would be established from the facts as happened in a particular manner in a given case to exercise power under Rule 4 of Order XXXVII. The Division Bench in MadhusudhanShrikrishna's case (supra) can be said to have reiterated what has been held in GovindbhaiDayal Mange's (supra) case, wherein the Division Bench has held that in order to get an exparte decree set aside under Order XXXVII, Rule 4 of the Civil Procedure Code, the appellant is required to prove that he had sufficient cause for remaining absent and is also required to prove that he has a reasonably good defence on merits on the basis of which the appellant can be granted leave to defend. Hence, the Division Benches have crystallized the requirement of Order XXXVII Rule 4 by holding that apart from sufficient cause, the Defendants would have to prove that they have a good defence on merits. It is in the said context that the instant matter would have to be adjudicated.
9. In so far as sufficient cause is concerned it is an undisputed position that the notice of the Summons for Judgment was served on the Defendants and not their advocate, as the advocate was not available. The reason of the illness of the Partner-Proprietor of the Defendants has not been accepted by the Trial Court on the ground that the original of the Medical Certificate was not produced. Assuming that the said ground is to be kept aside, it is required to be noted that the person who has accepted the notice might have not understood the seriousness of the matter and therefore, may not have informed the advocate. The difference between a Regular Suit and a Summary Suit might be known to the party and hence, might have informed the advocate of the notice of the Summons for Judgment being received after he had acquired knowledge of the decree being passed. What is required to be noted is that immediately after acquiring knowledge that the instant Notice of Motion came to be filed, hence, it cannot be said that the Defendants have acted in a negligent and careless manner as the filing of the Notice of Motion was immediate. In my view, therefore, it cannot be said that the case of the Defendants in so far as sufficient cause is concerned is required to be rejected outright.
10. This is in so far as sufficient cause is concerned. Now, in so far as merits of the defence is concerned, though in the affidavit in support of the motion only a statement appears that Defendants have a good defence on merits. It is required to be noted that in the subsequent para there is reference made to another suit filed by M/s. Manor Auto Service being suit No.4913 of 2012. Insofar as the said suit is concerned, it is required to be noted that the instant suit and the said suit No.4913 of 2012 is founded on the same notice i.e. notice dated 15th October, 2012. In the said notice, it is mentioned that the present Plaintiffs and M/s. Manor Auto Service are associates of each other. In the said suit, the claim arising is out of the transaction of an identical nature wherein the vehicles of the Defendants also used to go to the Petrol Pump of the Plaintiff in the said suit for filling fuel. It is required to be noted that by a letter dated 25th September, 2012, addressed on behalf of the Defendant No.1Radhakrishna Carriers Pvt. Ltd., the factum of excess petrol being discharged by the Plaintiffs visavis the vehicles of the Defendants was alleged and the claim of Rs.39,99,052/- was sought to be raised against the Plaintiff. The notice dated 15th October, 2012, of the Plaintiff seems to be a result of the said letter dated 25th September, 2012, addressed on behalf of the Defendant No.1. The two suits are also based on the statement of running account as also the invoices of the Plaintiffs which invoices according to the Plaintiffs remained to be paid by the Defendant. Insofar as the Suit No.4913 of 2012 is concerned, as indicated above, the Trial Court has by order dated 4th February, 2014 passed in the Summons for Judgment filed in the said suit has granted conditional leave on deposit of a amount of Rs.50,000/- in the said suit. Hence, when in an identical set of facts wherein, the same Defendants have been granted conditional leave whether it can be said that in the instant suit the Defendants do not have any case on merits. Though various contentions are sought to be raised on behalf of the Respondent i.e. original Plaintiff as regards the defences which are sought to be raised on behalf of the Defendants by relying upon the documents in the compilation. Prima-facie, it cannot be said that the defence raised by the Defendants is such that they are not entitled to even leave to defend. More so, in the light of the fact that in another suit in the same set of facts, conditional leave has been granted. The judgment of the Learned Single Judge in Indian Express Newspapers (Bombay) Ltd. (supra), in my view would not aid the Plaintiff i.e. to Respondent herein in his contention that special circumstances have not been shown by the Defendants. In the said judgment, the Learned Single Judge held that when Parliament provides that the Court may set aside a decree under special circumstances, it had in mind circumstances mainly factual in nature like the defendants being prevented from appearing in Court or presenting his case. The Learned Judge further held that the special circumstances should be circumstances not in existence when the Court passed the decree or if in existence, not brought to the notice of the Court. Having regard to the grounds on which the setting aside of the decree was sought in the said case the Learned Single Judge observed that the said circumstances are common and ordinary in the sense that they are usual grounds of law that are taken by parties in the Appellate Court. Such is not the case in the instant matter as this Court both on the ground of sufficient cause as also on the ground of merits in the decree has come to
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a conclusion that the Defendants have satisfied the special circumstances test. It seems that in the Company Petition filed by the Plaintiff in both the suits being Company Petition No.529 of 2014, minutes of order came to be filed on 19th September, 2014, by which minutes of order, the Defendants were directed to deposit Rs.7,90,000/-, insofar as instant suit is concerned, and an amount of Rs.1,85,225/- insofar as second suit is concerned, after deducting the amount of Rs.50,000/- already deposited pursuant to the order granting conditional leave. In my view, therefore, the interest of the Plaintiffs in both the suits can be said to be adequately protected. 11. In the facts and circumstances as aforestated, the impugned order dated 08.07.2013 required to be set aside and is accordingly, set aside. Resultantly the Notice of Motion No.427 of 2013 to stand allowed. Consequently the decree dated 14.01.2013 would stand set aside. The Summons for Judgment would stand restored to file. The Defendants would file their affidavit in reply to the Summons for Judgment within six weeks from day. The Trial Court would thereafter hear the said Summons for Judgment expeditiously. It is made clear that the observations made in the instant order are only for the purposes of consideration of the case of the Defendant in their application filed under Order XXXVII Rule 4 of the Code of Civil Procedure. The Trial Court would consider the Summons for Judgment on its own merits and in accordance with law. The amount i.e. deposited in this Court in this Petition would continue to remain in this Court and would be subject to the result of the suit. The learned Registrar Judicial-I of this Court to invest the amount initially for a period of one year, if not already invested in a Nationalized Bank and thereafter renew the said deposit for such period or periods which he deems appropriate. 12. The Petition is allowed to the aforesaid extent. Rule is accordingly, made absolute in the aforesaid terms with parties to bear their respective costs.