: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3859 OF 2007 IN SUMMARY SUIT NO.4979 OF 1998 Mrs.Prabha P. Shenal ....Plaintiff V/s. Crown Maritime Co.(India) Pvt. Ltd. ....Defendant Mr.Clive D’Souza with D.U. Siroya i/b M/s.Kunduru & Kunduru for the Plaintiff. Mr.Mahesh Jethmalani, Senior Counsel with Mr.P.B. Naiknaware for the Defendant. Mr.K.D. Shukla for the Applicant - Dena Bank. CORAM : S.J. VAZIFDAR, J. DATED : 13TH AUGUST, 2008. ORAL JUDGMENT : 1. The Defendant has filed this Notice of Motion to set-aside an ex-parte decree dated 13.4.1999. 2. The suit is filed to recover a sum of Rs.86,14,908=14 ps. together with interest on the sum of Rs.53,56,800/- at the rate of 30% p.a. The Defendant contends that the writ of summons and the papers and proceedings of the suit were not served upon it. It is alleged that the same was obtained by the Plaintiff dishonestly behind the back of the Defendant. According to the Defendant, its main : 2 : administrative office was at Mavelikkara in the State of Kerala and that the Plaintiff was aware of the same having in fact addressed correspondence to the Defendant at that address. Despite the same, the Plaintiff did not serve the Defendant at its office in Kerala and sought to serve it at its Mumbai office which the Plaintiff knew was closed for shifting. The Plaintiff’s letters were therefore returned unclaimed. 3. There have been several proceedings including criminal proceedings between the parties including in this Court. 4(A). The Plaintiff had filed three other summary suits being Summary Suit Nos.2587 of 1998, 2826 of 1998 and 3179 of 1998 in which ex-parte decrees had been passed on 12.1.1999. The Defendant was allegedly served in all these suits after obtaining orders for substituted service. (B). The Defendant took out Notice of Motion Nos.2605 of 1999, 1084 of 2000 and 1085 of 2000 in the said Summary Suit Nos.2587, 2826 and 3179 all of 1998 respectively to set aside the ex-parte decrees. (C). At the ad-interim stage the learned Judge restrained the Plaintiff from taking any further steps : 3 : or proceedings pursuant to the ex-parte decrees. In the ad-interim order dated 11.8.1999 in Notice of Motion Nos.2605 of 1999 in Summary Suit No.2587 of 1998, the learned Judge observed that the Plaintiff was defending the litigation which had been taken out by the Defendant in Kerala and had intentionally not served the Defendant at its address in Kerala though she was aware of the same. . In the ad-interim orders in Notices of Motion Nos.1084 of 2000 and 1085 of 2000 the learned Judge recorded a prima-facie finding that the ex-parte decrees had been obtained by playing a fraud on the Court. (D). The above three Notices of Motion were finally allowed by an order and judgment dated 25.9.2001. The learned Judge observed that the Plaintiff was aware that the Defendant was carrying on business from its administrative office at Kerala and for the reasons stated therein, the Plaintiff ought to have served the Defendant at that office. 5. Further according to the Defendant, the fact of the ex-parte decree having been passed on 13.4.1999 had been suppressed until 21.9.2007. The warrant of attachment on the Defendant’s office was levied only : 4 : on 21.9.2007. Thereupon the Defendant took search of the papers and proceedings in the office and discovered the particulars regarding the above proceedings. 6. Mr.D’Souza submitted that the application is barred by limitation. He submitted that the period of limitation for an application to set-aside a decree under Order 9 Rule 13 of the C.P.C. is thirty days. In this regard he relied upon a judgment of a learned single Judge of the Hon’ble Andhra Pradesh High Court in Karumilli Bharathi v. Prichikala Venkatachalam, AIR 1999, AP 427. Relying upon the said judgment, he stated that though the present Notice of Motion is an application under Order 37 Rule 4 of the C.P.C. the period of limitation would be only 30 days and not three years. The learned single Judge of the Hon’ble Andhra Pradesh High Court has dissented from the contrary view taken by a Division Bench of this Court in P.N. Films Ltd. and another v. Overseas Films Corporation Ltd., AIR 1958 Bombay 10. The learned Judge of the Hon’ble Andhra Pradesh High Court observed that the judgment of the Division Bench of this Court had been followed by the High Courts of Rajastan and Jammu and Kashmir. The learned Judge however held that the approach taken by the Division Bench of this Court is incorrect. : 5 : 7. The judgment can be of no assistant to Mr.D’Souza. The judgment of the Division Bench of this Court in P.N. Films Ltd. is obviously binding on me. 8. Mr.D’Souza then submitted that the ratio of this judgment would not apply to a case where an appearance was not filed and leave to defend was not even sought and as a result thereof, an ex-parte decree is passed. He submitted that in such a case the provisions of Order 37 would not apply and an application to set-aside a decree passed in these circumstances ought to be made by the party and considered by the Court under Order 9 Rule 13 of the C.P.C. 9. The submission is not well founded either on principle or on authority. Firstly, it is pertinent to note that even in P. N. Films Ltd. the Respondent had filed a summary suit against the Appellant and the summons was served on it. The Appellant failed to file an appearance and a decree was passed. The Appellant thereafter took out a Notice of Motion to set-aside the decree. . The present case is no different. In that : 6 : event, assuming the Plaintiff’s contention regarding having served the Defendant with the writ of summons to be correct, the decree was passed on account of the Defendant not having filed an appearance. I am obviously bound by the judgment of the Division Bench of this Court. . Chief Justice Chagla speaking for the Court observed :- "2. ................................ But in our opinion it is unnecessary to consider that aspect of the matter because Mr.Gauba is on much stronger ground when he takes up the contention that Art.164 does not apply to the notice of motion taken out by his clients. Article 164 only applies when there is an ex-parte decree or order and an application is made to set aside such an order or a decree, and the question that we have to consider is whether looking to the provisions contained in the Code with regard to a summary suit it could be said that the present decree which is challenged was an ex parte decree. Order 37 deals with summary suits. It is a self-contained Order which lays down the procedure for dealing with summary suits, and although R.7 provides that the procedure in suits under this Order shall be the same as the procedure in suits instituted in the ordinary manner, that is, subject to the provisions contained in O.37. . After analyzing the provisions of Order 9 including, in particular, rule 6, 7 and 13 thereof, His Lordship held :- : 7 : "Therefore, looking to the provisions of O. 9, R. 6, it seems to us clear that those provisions do not apply to a decree passed in a summary suit and that an application to set aside a decree in a summary suit is not regulated by O. 9, R. 13 but by O. 37, R. 4. In other words, O. 37, R. 4 is a self-contained Order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside." . The Division Bench rejected a submission similar to the one raised by Mr. D’Souza that even assuming that the decree did not fall within Order 9 rule 13 and no ex-parte decree was passed as contemplated by Order 9 rule 6 Article 164 (now Article 123) would apply as Article 164 was not restricted to decrees under Order 9 rule 6. 10. Further Order 37 is a self-contained Order which lays down the procedure for dealing with a summary suit. I do not see now Mr.D’Souza’s reliance upon rule 7 thereof makes any difference to the case. Rule 7 merely provides that save as provided by Order 37 the procedure in suits filed under Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. It says nothing more. That the procedure in ordinary suits is applicable to suits : 8 : filed under Order 37 does not change the nature of Summary Suits. Nor does this aspect affect the conclusion that Order 37 is a self-contained order as held by the Division Bench in P.N. Films Ltd. . Indeed, in P. N. Films Ltd. rule 7 was noted. Even if rule 7 would not specifically referred to it can hardly be suggested that the judgment of the Division Bench is per-incurim for not having considered the effect of Rule 7 on this question. 11. There is nothing in Order 37 rule 4 that limits its applicability only to cases where leave to defend though applied for was rejected or to cases where a decree is passed at the hearing of the summons for judgment itself. Nor do I see any reason to read such a limitation into rule 4. It would be contrary to the plain language of the rule which applies to any decree passed in a suit filed under Order 37. Apart from being bound by the judgment of the Division Bench of this Court, I am in any event with respect, unable to agree with the judgment of the Hon’ble Andhra Pradesh High Court in Karumilli Bharathi’s case. 12. In the circumstances, it must be held that irrespective of the circumstances in which a decree is passed in a suit filed under Order 37, the period of : 9 : limitation would be governed by Article 137 and not by Article 123 of the Limitation Act. 13. Faced with this, it was submitted that the Defendant was aware of the passing of the ex-parte decree almost immediately. The intimation of the passing of the ex-parte decree was forwarded to various addresses of the Defendant including the office in Kerala. The alleged intimation to the Defendant’s office in Kerala is by a letter dated 15.9.1999. The receipt of this letter is denied. The letter is alleged to have been sent by R.P.A.D. An acknowledgement is allegedly endorsed including by affixing the stamp of the Defendant company on 25.9.1999. 14. The receipt of the said letter is denied by the Defendant. To say the least in favour of the Defendant considering the facts and circumstances of this case, it would be necessary to put the Plaintiff to the strict proof of the service even of the letters intimating the Defendant of the ex-parte decree having been passed. Considering the facts and circumstances of this case,it is difficult to accept the contention that though several proceedings had been initiated by the parties against each other including criminal proceedings, the Defendant would have done nothing in : 10 : the matter for about eight years. No application for leading evidence was made. In any event in my view no useful purpose would be served by adjourning this Notice of Motion to Court for recording evidence. Considering the facts of this case this is a fit matter where the ex-parte decree ought to be set-aside and the parties be directed to prosecute the suit on merits. 15. It is not necessary for the purpose of this Notice of Motion to consider the rival contentions regarding the documents relied upon in the suit being forged and fabricated. 16. In the circumstances, the Notice of Motion is made absolute in terms of prayer (a). As far as prayer (c) is concerned the Defendant is at liberty to adopt appropriate proceedings or raise the same in appropriate proceedings. . It is however made a condition of this order that the Defendant may be served with any proceedings including any Summons for Judgment that may be taken out at its advocate’s office namely Mr.P.B. Naiknaware, Advocate, High Court, Rajshree Co-operative Housing Society, P.K. Sawant Marg, Four Bungalows, Vrindavan, Venu Chowk, Andheri (West), : 11 : Mumbai-400 053. If there is any change in this regard, the Plaintiff’s advocate shall be informed of the same in writing and subject to such intimation service upon such address shall be deemed to be valid service.