SCA/68/8808 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6888 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================= = 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 ? ========================================= = ATULKUMAR BABULAL SONI - Petitioner(s) Versus SHRI BARIYA NAGRIK SAHAKARI BANK LIMITED - Respondent(s) ========================================= = Appearance : MR NIRAL R MEHTA for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR ARPIT A KAPADIA for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 15/09/2008 ORAL JUDGMENT 1. Leave to amend averments and prayer to SCA/68/8808 2/7 JUDGMENT challenge ex-parte judgment and award of the learned nominee in suit No. 433 of 2004, with the consent of learned counsel of respondent bank. 2. Rule. Mr. Kapadia learned counsel waives service of notice of rule for respondent. 3. With the consent of of learned advocates appearing for both the sides the matter is finally heard. 4. The short facts of the case appears to be that there were two suits filed by the respondent bank being Lavad Suit No. 546 of 2004 for recovery of the amount of Rs 3,32,338=80/- with interest and another Lavad Suit No. 776 of 2006 for the recovery of Rs 2,98,000/- with interest. In the former suit the petitioner was the principal borrower whereas in the later suit the father of the petitioner was the borrower but as the property is inherited by the petitioner from his father, he will be required to be joined as legal heirs of the defendant in suit No. 433 of 2004. It appears that as per the petitioner in response to the summons issued by the learned Nominee the advocate was engaged. However, the said advocate did not defend the suit and the matter proceeded ex-parte and the award were passed by the learned Nominee by the aforesaid suit. The petitioner preferred appeal before the Tribunal against the said ex parte award, in one suit. Pending appeal, the petitioner deposited the amount of Rs 2,00,000/- with the respondent bank . In the meantime the respondent bank proceeded for further recovery of the amount and seal were applied over the property by the respondent bank. Against the aforesaid judgement and the award of the SCA/68/8808 3/7 JUDGMENT Tribunal in the appeal the petitioner has approached this Court by the present petition. 4. Heard Mr. Mehta for the petitioner and Mr. Kapadia for the respondent bank. 5. It appears from the earlier orders passed by this Court in the present petition that there are serious disputes raised by the petitioner regarding the amount claimed in the suit. The contention of the petitioner is that certain payments were already made and certain understanding was arrived at between the petitioner and the respondent bank and inspite of the same, those payments are not given credit in the books of account of the bank and the understanding is not honoured by the respondent bank and the suits have been filed. The aforesaid facts show there is triable defence to be considered by the Board of Nominees though the suits proceeded ex- parte on account of the default by the learned advocate for the petitioner. 6. Learned counsel appearing for both the sides have agreed that if the matter are remanded to the learned Nominee for retrial of both the suit, their respective client would lead evidence on the aspects of the amount actually outstanding on the date of the suit and the amount paid by the petitioner to the respondent bank. Even otherwise also considering the facts and circumstances it appears that when there is triable defense to be considered by the learned Nominee, it was required by the Tribunal to exercise the discretion for setting aside the order of the learned Nominee which was ex-parte by remanding the matter to the Nominee. SCA/68/8808 4/7 JUDGMENT 7. However, it does appear that even if the petitioner has triable issue before the learned Nominee, in the matter of ex-parte decree if the discretion is exercised unconditionally it would result into encouraging the litigant to apply dilatory tactics and therefore it would be required for the Court to exercise the discretion by putting the condition to the person facing ex-parte judgment to deposit reasonable amount considering the facts and circumstances of the case. In my view the suits filed by the bank were as the Summary Suits and for defence it would have been required for the petitioner to deposit 33% of the amount. Therefore such amount can also be ordered in the present case for being a condition to set aside the ex parte award passed by the learned Nominee and for retrial of the suit. If the facts of the present case are considered it appears that pending the appeal before the learned Tribunal the petitioner had deposited the amount of Rs 2,00,000/- and has further deposited the amount of Rs 50,000/- with this Court as against the same the total amount of both the suit was Rs 6,30,338/- and interest at the rate of 18%. Therefore if the suit amount is taken into consideration it can be said that the petitioner has already deposited the amount of Rs 33% of the suits claim are therefore such amount can be considered being compliance to the condition for setting aside the order ex-parte and remanding the matter to the Tribunal. 8. It is also by now well settled that if the matter has proceeded ex-parte , the party who was vigilant about the litigation should not suffer by paying the cost of the litigation on account of the default of the other party. Even if the SCA/68/8808 5/7 JUDGMENT contention of the petitioner is considered on its fase value that the advocate who was engaged did not take proper care to defend the suit, the fact remains that the advocate was appointed by the petitioner. For such default, the bank cannot be made to suffer for incurring expenses of the litigation which has arisen on account of the default by the petitioner or his advocate. Therefore, it appears that the petitioner who has committed default in defending the suit must bear the expenses of the litigation of both the suits before the Tribunal as well as before this Court. Considering the facts and circumstances of the case it would be just and proper to quantify the costs of litigation at Rs 10,000 to be borne by the petitioner and to be recovered by the respondent bank. 9. In view of above the judgement and award of the Board of Nominee and its confirmation therefor by the Tribunal are quashed and set aside with a condition that the petitioner deposits 33% of the amount of the suit claimed and the cost of Rs 10,000/- towards the litigation. Since the petitioner has already deposited the amount of Rs 2,00,000/- pending appeal before the Tribunal and Rs 50,000/- pending the petition before this Court , the petitioner shall not require to be deposit any additional amount and the said amount shall stand adjusted towards compliance to the aforesaid condition. As the amount of Rs 50,000/- is deposited with this Court, the office shall pay the amount to the respondent bank, which shall be credited by the respondent bank as compliance to the present order. In other words the amount of Rs 2,40,000/- shall be given credit by respondent bank and the amount of Rs 10,000/- shall be adjusted by the respondent bank towards cost of the litigation. SCA/68/8808 6/7 JUDGMENT 9. As it appears that as the seal was already applied on the property and thereafter pursuant to the interim order passed by this Court was removed by the respondent bank, the property is in possession of the petitioner. As the matter is ordered to be remanded, the petitioner may retain the possession of the property, however, no third party can be inducted nor the petitioner will be at liberty to sell the property, until the suit is finally decided by the learned Nominee by passing the appropriate awards in accordance with law. 10. Hence, it is further directed that the property in question shall remain in possession with the petitioner and the Board of Nominee shall ensure that the panchnama is drawn about the actual position of the property in presence of the petitioner as well as the officer of the respondent bank. Until the suits are finally decided by the learned Nominee afresh, the property shall remain in possession of the petitioner and the possession shall not be parted with the petitioner in any manner whatsoever nor the petitioner shall sale or transfer or alienate the property in any manner whatsoever. Learned Nominee shall decide the suit as early as possible preferably within the period of six months from the receipt of the order. This petition is allowed to the aforesaid extent. Rule is made absolute accordingly. (Jayant Patel,J.) mary// SCA/68/8808 7/7 JUDGMENT