Case: Arun Kumar Kanoria Vs. United Phosphorous Limited

Oral Judgment (P.B. Majmudar, J.)1. Delay in filing the review petition is condoned. The notice of motion is accordingly disposed of. The review petition is taken up for hearing today.2. This is an absolutely vexatious proceedings taken out by the petitioner-judgment debtor, who is interested in delaying the proceedings even though the decree is passed more than seven years ago.3. The respondent herein instituted a Suit in November 1997 being Summary Suit No.4600 of 1997 for recovery of Rs.41,00,000/- as principal amount with interest. In the said Suit, the Plaintiff took out Summons for Judgment No.200 of 1998 in March 1998. The present Appellant who was original defendant, thereafter filed reply and filed his affidavit to the summons for judgment. On 25-10-1999, conditional order was passed on the summons for judgment, directing the present appellant to deposit Rs.47,00,000/- within 14 weeks from the date of order.4. Aforesaid order was challenged before the Division Bench of this Court on the ground that unconditional leave should have been granted to the defendant to defend the Suit. Said appeal was dismissed as back as on 13-6-2000. The said order was challenged by way of Special Leave Petition before the Honble Supreme Court. Said S.L.P. was also dismissed in November 2000. Ultimately the Suit was decreed as back as on 12-2-2001.5. After the suit was decreed, the Appellant submitted an application under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the decree by filing Notice of Motion No.429 of 2004. Said notice of motion was dismissed by this Court on 10-12-2004 and the Court found that no special case is made out by the Defendant under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the decree.6. The said order was challenged by way of anAppeal bearing No.423 of 2005. The said Appeal was dismissed by the Division Bench consisting of R.M. Lodha, (as His Lordship then was) and J.P. Devadhar, JJ. on 7-6-2005. The ingenuity of the petitioner did not stop their. The petitioner filed present Review Petition on 2-9-2005, but did not take steps to move the Review Petition which is filed in the year 2005 for all these years. In the meanwhile, R.M. Lodha, J. (as His Lordship then was) was transferred to Rajasthan High Court. It is required to be noted that no attempt was made by the present Petitioner to move the Review Petition before the same bench. Not only that all throughout the Petitioner has never moved this Court for taking the Review Petition on board and the execution proceedings are delayed probably because of pendency of this Review Petition. It is only at the request of the other side, the Review Petition is circulated and that is how the Review Petition has been placed before us.7. The learned counsel for the petitioner vehemently submitted that the Division Bench while deciding the Appeal No.423 of 2005 has not taken into consideration the important aspect that the cheques in question issued by the company were blank cheques. The learned counsel for the petitioner submitted that so far as present petitioner is concerned, he was one of the directors of the company and he had given his personal guarantee which was conditional one, to the effect that in case cheques issued by the company are bounced back, then the petitioner was to reimburse the amount to the respondent - original plaintiff on his own. The learned counsel for the petitioner submitted that subsequently it has come to the notice of the petitioner that the company had merely issued blank cheques. It is submitted that since the company had issued only blank cheques, the petitioner was not liable to make any payment on return of the cheques. It is submitted that under these circumstances under Order 37 Rule 4 of the Code of Civil Procedure, the Petitioner can be said to have made out a special case for setting aside the decree and the petitioner should be given an opportunity now to defend the Suit by granting unconditional leave to defend.8. We have heard the learned counsel for the petitioner at length. We have also gone through the original order passed by the Division Bench on 7-6-2005. It is required to be noted that initially conditional leave was granted to the defendant by asking him to deposit Rs.47,00,000/-, which order was confirmed in the appeal and SLP against the same was also dismissed by the Honble Supreme Court. In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioner - original defendant. The aforesaid decree was passed as back as on 12-2-2001 and subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005. The Division Bench in para 2 and 5 of its order, observed as under:"2. The learned counsel for the appellant contended that the summary suitfiled by the present respondent against the appellant herein was founded on blank cheques. At the time of hearing of the summons for judgment, the case of the respondent was that the cheques were blank cheques but the learned Trial Judge did not consider the said aspect at the time of hearing of summons for judgment. But thereafter in the criminal proceedings there was an admission by the respondent that the cheques were blank and even in response to the notice of motion under Order XXXVII Rule 4 C.P.C., there is admission by the respondent that the cheques were blank. In this background, the learned counsel submitted that the case indicating special circumstances for setting aside the decree under Order XXXVII Rule 4 C.P.C. was clearly made out and the learned Single Judge ought to have set aside the decree. The learned counsel relied upon the Division Bench judgment of this court in the case of Ramchandra Dhondu Dalvi V/s. Vithaldas Gokuldas (AIR 1964 Bombay 251).5. In our considered view for non compliance of the order granting conditional leave to defend to the appellant, if the decree came to be passed, the same cannot be faulted. The facts aforenarrated do not make out special circumstances under Order XXXVII Rule 4 C.P.C. for setting aside the decree dated February 12, 2001."9. It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench dated 7-6-2005 any additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as on 2-9-2005, no attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf.

Decision:
0[ds]In spite of the same, the present petitioner failed to deposit any amount and in these circumstances, ultimately decree was passed against the petitioneroriginal defendant. The aforesaid decree was passed as back as onand subsequently an application was moved under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the said decree on the ground that special circumstances exists for setting aside the decree, as the defendant subsequently came to know that the cheques issued by the company were blank cheques. At this stage, it is required to be noted that this very point was even canvassed before the Division Bench in Appeal No.423 of 2005.It is clear that this very point was argued by the petitioner before the Division Bench that the cheques in question were blank cheques and, therefore, the decree should be set aside under Order XXXVII Rule 4 C.P.C. The Division Bench after considering the arguments has negatived the said contention. In our view, attempt of the petitioner is nothing but to argue the said Appeal denovo before us. The powers of this Court under Order XXXVII of the C.P.C. are limited to the extent provided under the Code. This Court is not expected to verify the correctness of the order passed by the earlier Division Bench. If the present petitioner had any grievance against the aforesaid order, his remedy was to challenge the said order before the Honble Supreme Court. It is not the case of the petitioner that after the order of Division Bench datedany additional material has come to his notice. The main argument advanced in this review is only on the point that the cheques issued by the company were blank cheques. The earlier Division Bench has considered this aspect and rejected the same. In our view the petitioner is trying to delay the proceedings by not allowing the other side to execute the decree passed seven years back on the pretext that the review petition is pending.10. As noted earlier, eventhough this review petition was filed as back as onno attempt was made by the petitioner to place the same before the Court and it is only at the request of the other side that the review petition is taken up for hearing. No attempt was made to move the review petition before the bench which decided the Appeal. The learned counsel for petitioner submits that he has no explanation to offer for the delay in this behalf.