SCA/9712/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9712 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KALYANI SHARP INDIA LTD - Petitioner(s) Versus PATEL RADIO AND ELECTRICAL - Respondent(s) ========================================================= Appearance : MR ASHISH H SHAH for Petitioner(s) : 1, MR MEHUL S SHAH for Respondent(s) : 1, MR SURESH M SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/09/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original applicant/defendant has prayed for appropriate writ, SCA/9712/2008 2/7 JUDGMENT order and/or directions, for quashing and setting aside the impugned order dtd.19/5/2008 passed by the learned Principal Civil Judge, Halol below application for condonation of delay Ex.1 in Misc.Civil Application No.6 of 1998. It is further prayed to quash and aside the judgement and decree dtd.11/7/2007 passed by the trial court in Regular Civil Suit No. 96 of 1999. 2. The respondent herein – original plaintiff instituted Regular Civil Suit No. 96 of 1999 before the learned Principal Civil Judge for recovery of Rs.31,580 with interest at the rate of 18% per annum, being different discounts granted by the petitioner Company. After service of the summons of the suit, as per the petitioner, as the talks of settlement were going on, advocate of the defendant did not remain present and the suit proceeded ex-parte and vide judgement and order dtd.11/9/2007, the learned trial court decreed the suit. It is the case on behalf of the petitioner that the petitioner came to know about the ex-parte decree on 10/1/2008 when the copy of the caveat application dtd.7/1/2008 was served upon the petitioner. As per the petitioner, the sales executive of the defendant firm contacted the proprietor of the plaintiff firm and the proprietor assured that no further SCA/9712/2008 3/7 JUDGMENT steps would be taken pursuant to the decree. However, the respondent inspite of the assurance further took step to transfer the decree to Small Cause Court, Ahmedabad and therefore, the petitioner contacted his advocate, who, in turn, advised the petitioner Company to file an application for quashing and setting aside ex-parte decree under Order 9 Rule 13 of the Code of Civil Procedure and accordingly, application for setting aside ex-parte decree was filed. However, there was a delay in preferring the application for setting aside the ex-parte decree, the petitioner submitted an application for condonation of delay. It is the case on behalf of the petitioner that on the date of filing of the Misc.Civil Application, after preliminary arguments, the Hon'ble Court called the advocate for the respondent firm and asked him to call the proprietor of the respondent firm – original plaintiff and settle accounts. As per the petitioner, the Court did not permit registration of Misc.Civil Application on 14/5/2008. On 16/5/2008, the respondent did not turn up and therefore, the trial court kept the matter on 19/5/2008 for orders without hearing arguments of the advocate of the petitioner Company and by the impugned order dtd.19/5/2008, the learned SCA/9712/2008 4/7 JUDGMENT trial court without hearing the advocate of the petitioner, dismissed the application for condonation of delay Ex.1 in Misc.Civil Application No.6 of 2008 with cost. Being aggrieved by and dissatisfied with the same, the petitioner – original defendant has preferred Special Civil Application under Article 227 of the Constitution of India. 3. Considering the averments in the petition which are narrated hereinabove and to see that the application for setting aside the ex-parte decree is heard on merits, while issuing the notice for final disposal, this Court passed the following order on 28/7/2008:- “NOTICE for final disposal returnable on 11th August, 2008 on condition that the petitioner shall deposit the entire decretal amount with the trial Court as per the judgement and decree with interest till date on or before 4th August, 2008. Shri Ashish Shah, learned advocate appearing on behalf of the petitioner has agreed to deposit the said amount. The petitioner shall also deposit an amount of Rs. 5000/- before this Court, over and above the aforesaid decretal amount on or before 4th August, 2008. SCA/9712/2008 5/7 JUDGMENT To be placed in the first board. Direct service is permitted”. 4. It is reported by Mr.Ashish Shah, learned advocate appearing on behalf of the petitioner that the petitioner - defendant has deposited entire decretal amount along with cost of Rs.5000 as directed by this Court. However, Mr.Mehul S.Shah, learned advocate appearing on behalf of the plaintiff has submitted that the entire decretal amount is not deposited. It is submitted that as per the judgement and decree the defendant was required to deposit Rs.3000 by way of exemplary cost, however, the said amount of cost of Rs.3000 is not deposited by the petitioner – defendant. It is also further submitted that even the petitioner was also directed to pay Rs.1000 pursuant to the order passed by the trial court while dismissing the application for condonation of delay. Mr.Ashish Shah, learned advocate appearing on behalf of the petitioner has stated that the remaining amount of Rs.4000 would be deposited by the petitioner with the trial court within six weeks from today. 5. Having heard the learned advocate appearing on behalf of the respective parties and having considered the SCA/9712/2008 6/7 JUDGMENT averments in the petition and considering the fact that the ex-parte judgement and decree has been passed and that the decree has not been passed on merits and considering the impugned order passed by the trial court dismissing the application to condone the delay in preferring the application for setting aside the ex-parte decree, this Court is of the opinion that when the entire decretal amount has been deposited by the petitioner – defendant to show his bonafide and without prejudice to the rights and contentions, the petitioner should be given an opportunity to submit the case on merits in the application to set aside the ex-parte decree. The petitioner has also deposited Rs.5000 towards cost for setting aside the ex-parte judgement and decree passed by the trial court and for setting aside the ex-parte decree on merits. 6. For the reasons stated above, the petition requires to be allowed and the impugned order passed by the trial court in not condoning the delay in submitting the application for setting aside the ex-parte judgement and decree requires to be quashed and set aside and the same is hereby quashed and set aside. The trial court is directed to decide and dispose of the application for setting aside SCA/9712/2008 7/7 JUDGMENT the ex-parte judgement and decree on merits ignoring the delay aspect. The petitioner to deposit balance amount of Rs.4000 (Rupees Four Thousand only) with the trial court within a period of six weeks from today. On deposit of such amount, the learned trial court to invest the said the entire amount (except Rs.4000 + Rs.5000) in the Fixed Deposit in any Nationalised Bank in the name of Nazir/Registrar of the Court initially for a period of three years with cumulative interest. The respondent – original plaintiff is permitted to withdraw the amount of Costs of Rs.9000 (Rs.4000 + Rs.5000) and the trial court to pay the said amount of Rs.9000 to the plaintiff by way of Account Payee Cheque after obtaining signature of the plaintiff. Rule is made absolute accordingly. [M.R. SHAH, J.] rafik