Delhi High Court
Tirupati Tex Knit Ltd. vs Sonali Bank Ltd. on 30 August, 2005
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT
R.C. Jain, J.
1. Sonali Bank Ltd./defendant No. 1, Motijhee Commercial Area, Dhaka, Bangladesh, has moved these applications i.e. IA No. 3301/2004 under Order IX Rule 13 read with Section 151 CPC for setting aside the ex-parte judgment and decree dated 5.8.2002 as modified vide order dated 7.3.2003 and IA No. 3302/2004 for condensation of 255 days delay in filing the said application for setting aside the ex-parte judgment and decree and IA No. 5243/2004 under Order XLI Rule 5(2) read with Section 151 CPC for stay of three-parte decree dated 5.8.2002 and the modification order dated 7.3.2003 passed in the said suit.
2. The applications have been made with the averments and allegations that the plaintiff/decree holder has filed the suit against the judgment debtor-applicant and others on the ground that the judgment debtor-applicant had failed to fully honour its letter of credit dated 24.1.1996 for US 48608 in respect of non-payment of dues of the exports made by the plaintiff to defendant No. 2 in Bangladesh, the letter of credit having been issued by the Dhaka Branch of Judgment debtor/bank. It is alleged that no point of time the summons issued in the suit were served upon defendant/judgment debtor No. 1/bank at its Dhaka Branch in Bangladesh and rather it appeared that the summons were served on the Kolkata Branch of the judgment debtor/bank which is an independent entity and has nothing to do with the judgment debtor/defendant No. 1 at Dhaka. The ex-parte decree was passed by the Court taking into account the service of summons at the Kolkata branch. It is also stated that for the said reasons judgment debtor/defendant No. 1 was prevented by sufficient cause from defending the suit when the case was called for hearing till the stage of the judgment and therefore, there are sufficient reasons for setting aside the ex-parte decree.
3. In IA No. 3302/2004 under Section 5 of the Limitation Act read with Section 151 CPC additional averments have been made that judgment debtor/defendant No. 1 acquired the knowledge of the suit filed by the plaintiff and ex-parte decree passed by this Court from a letter dated 8.7.2003 received by it from its Kolkota branch. On receipt of the said letter on 28.7.2003, the judgment debtor/defendant No. 1 under legal advice of his local counsel, Kolkata counsel and lastly of lawyers of Supreme Court file a SLP before the Supreme Court on 11.11.2003. The said SLP was withdrawn by the judgment debtor/applicant as the Hon’ble Supreme Court was of the view that other alternate remedy was available to the judgment debtor. Thereafter judgment debtor No. 1 underwent the process of consultation with their lawyers which took some time in the process and the delay of 255 days had occurred in moving the application which is liable to be condoned for the above reasons. It is stated that the delay in filing of the application under Order IX Rule 13 CPC was bonafide, inadvertent and unintentional and there is sufficient cause for condensation of delay and in case the delay is not condoned, the judgment debtor-applicant will suffer irreparable loss and injury.
4. The application is opposed on behalf of the plaintiff/decree holder and a reply has been filed raising preliminary objections that the application is misconceived; defendant-applicant was duly served with the summons and the bank was represented through a counsel who even filed a written statement through belatedly which was directed to be taken on record subject to payment of Rs. 5,000/- as costs. On 23.9.1999, as the cost were not paid, the Court passed an order that the written statement so filed on behalf of defendant be not taken on record. There being no appearance on behalf of defendant/applicant thereafter and so vide an order dated 5.11.1999, the defendant No. 1/applicant and also defendants No. 2 and 3 were ordered to be proceeded ex-pare against. Plaintiff led his ex-parte evidence and a decree dated 5.8.2002 was passed. The application is stated to be hopelessly barred by time and there are no sufficient grounds for condoning the undue delay in filing the application. It is denie that defendant/applicant was served with the summons and on the other hand it is pointed out that it was duly served and the counsel for defendant No. 1 appeared on behalf of defendant/applicant on 12.3.1998 and on his request, was granted six weeks time to file its written statement which was filed on 5.5.1999 but was ordered to be taken off the record due to the non-payment of the cost subject to which written statement was allowed to be filed. It is stated that the written statement filed on behalf defendant No. 1 bears the stamp of Dhaka Branch of the defendant. It is denied that defendant No. 1/applicant was prevented by any sufficient cause to participate in the proceedings or that there exists any sufficient grounds for setting aside the ex-pate decree. The parties have filed affidavits along with the application, reply and documents in support of their respective contentions.
5. I have heard Mr. S.K. Gupta representing judgment debtor/defendant No. 1 and Mr. Rajeev Bansal for the decree holder and have bestowed my thoughtful consideration to their respective submissions.
6. The fate of the present applications entirely depends on the question as to whether defendant No. 1 was or was not served with the summons of the suit and the appearance of a counsel on behalf of defendant No. 1 in the Court and filing of the written statement by him was without any authority because it is not disputed that the summons were received by the Kolkata branch of the defendant bank. Mr. Gupta, learned counsel appearing for defendant/applicant has vehemently urged that no summons of suit wherever served on the defendant at its Dhaka, Bangladesh address and the service at Kolkata branch/office of the defendant cannot be deemed to be valid service inasmuch as the Kolkata branch was not concerned with the subject matter of the suit and had nouthority to represent the defendant No. 1 in the present suit. In the opinion of this Court, this submission is devoid of any merits because the summons of the suit were duly served on defendant No. 1 who was duly represented in the proceedings through. Bijan Ghosh, Advocate, Supreme Court of India who had filed his power of attorney dated 12.3.1998 bearing the signature of a certain Mrs. Niza Noor Rehman, Chief Executive, Sonali Bank along with its stamp. The said counsel represented the defendat No. 1 in the proceedings on 12.3.1998 and on his request copies of the plaint were ordered to be supplied to him within six weeks. He filed a written statement on 4.5.1999 and appeared before the Joint Registrar on 5.5.1999. The Joint Registrar order that written statement filed on behalf of defendant No. 1 to be taken on record subject to cost of Rs. 5,000/- However, neither the cost was paid nor anybody appeared on the next date of hearing i.e.23.9.1999 or 5.11.1999 and so the Joint Registrar observed that the written statement so filed cannot be taken on record. The matter was listed before the Court on 5.11.1999 when there was no appearance on behalf of defendant No. 1. and the Court made the order of ex-parte proceedings against this defendant a also against defendants No. 2 and 3. Mr. Gupta, has strongly contended that the original written statement allegedly filed on behalf of defendant No. 1 on 4.5.1999 is not on record and must have been returned and so it must be presumed that there was unwritten statement filed on behalf of defendant No. 1. It is true that the original written statement which might have been filed on behalf of defendant No. 1 is not on record but the original index with an endorsement of the plaintiff’s counsel dated 2.1.1998 and photocopy of the written statement along with documents containing total pages 35 in number is available on record, therefore, it can be safely presumed that such a written statement was, in fact, filed on behalf of defendant No. 1 and that might have been returned or taken back by the Registry to the counsel on the ground that the cost was not been paid. Though strictly speaking, that was not a correct procedure to be followed because once a document which stands filed on record and has become part of the record, it cannot be and should not be returned to the party unless the Court itself orders for return of such document to a party. However, that itself is not of much of consequence and the fact remains that the defendant no. 1 was duly presented on record and even a written statement of defense was filed on its behalf. The contention that the officer of the Kolkata Branch of defendant No. 1 who had engaged the counsel and signed the said written statement had no authority to do so cannot be accepted. Because if the Kolkata branch of defendant No. 1/bank was not concerned with the matter it was obligatory on its part to have referred the matter to their counter part in Dhaka branch for taking necessary action rather to engage a counsel for representation of defendant No. 1 and to file a written statement of defense. In absence of any proof coming forth to the contrary, this Court must presume that the said officer had the due and valid authority to engage counsel and file the written statement on behalf of the judgment debtor/defendant. This plea is apparently an afterthought plea raised for the purpose of this application.
7. This Court having regard to the totality of the facts and circumstances and material available on record and the subsequent conduct of defendant No. 1 in processing the matter through Kolkata legal advisors and Supreme Court legal advisors, has no hesitation in holding that defendant No. 1 was duly represented on record as far back as 12.3.1998 through a duly authorised counsel. This Court, therefore, must hold that defendant No. 1 was duly served with the summons of the suit and was represented one cord and had filed a written statement which has to be taken off the record due to their default in payment of cost. Consequently it must be held that there are no sufficient grounds for setting aside the ex-parte decree. There has been a delay of 25days in filing the application which also remains unexplained because defendant No. 1-applicant has pursued wrong remedy before a wrong forum so far as relief was concerned.
8. In the result all the three applications are dismissed and disposed of accordingly.