1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4325 OF 2007 IN SUIT NO.884 OF 1998 The Chairman, Mumbai Port Trust &Anr. ...Plaintiffs. Vs. M/s.Robinsons. ...Defendant. .... Mr. U.J. Makhija with Mr.Parag Khandhar i/b. Mulla & Mulla for the Plaintiff. Mr.Pankaj Suthar i/b. M/s.Khaitan and Jayakar for the Defendant. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 17, 2009. P.C. The Notice of Motion has been taken out for setting aside an ex-parte decree dated 20th July 2007 passed by Hon'ble Mr.Justice A.S. Oka. Notices of Motion in a batch of matters where ex-parte decrees had been passed on 20th July 2007, were listed before Hon’ble Mr. Justice A.A. Sayed. By an order dated 6th March 2009, Notice of Motion 4323 of 2007 in Suit 308 of 1998 was granted and the decree which was passed therein came to be set aside, subject to costs. In so far as this suit is concerned, the Learned Judge, by an order dated 20th 2 April 2009 observed that the facts of this case were different and that consequently, the application for restoration would have to be delinked. -2. The Chairman and the Board of Trustees of the Mumbai Port Trust instituted a suit on 4th December 1997 for the recovery of an amount of Rs.15,98,621.37 from the Defendant on account of the difference in the wage arrears and Dearness Allowance payable under the settlement to the workmen who were supplied by the erstwhile Bombay Dock Labour Board to the Defendant who carried on Stevedoring activities. The Bombay Dock Labour Board was superseded and the powers of the Board came to be vested in the Chairman of the Port Trust. The workers of the erstwhile Bombay Dock Labour Board were transferred to the Port Trust on 1st March 1994. The claim for recovery arose on the basis of wage and Dearness Allowance arrears paid by the Port Trust to the workers for the period when they were in the employment of Stevedores. These facts have been narrated as a prefatory background. The Court would have to consider the application for setting aside the ex-parte decree on 3 grounds which are sustainable under Order 9 Rule 13 of the Code of Civil Procedure, 1908. -3. The Defendant had signed a Vakalatnama for the appearance of its Advocate, Mr.S.R. Rawell. No Written Statement was filed. The suit was transferred to the list of undefended suits on 16th January 2006. According to the Defendant, the suit came up on Board on 17th October 2005, 13th December 2005 and 3rd July 2007 when none appeared on behalf of the Defendant. On 16th July 2007, the Advocate who had entered appearance on behalf of the Defendant was present before the Court and in his presence, the suit was adjourned to 20th July 2007. On 20th July 2007, the suit came to be decreed. -4. Admittedly, the writ of summons was served on the Defendant. The Defendant had entered appearance through an Advocate. The case of the Defendant is that the Stevedores Association used to furnish instructions to the lawyer on behalf of the members; the activities of the Association were truncated; and in 4 2005, the Association had shifted to new premises. The substance of the case of the Defendant is that it had instructed the Stevedores Association. -5. This cannot be a justification for the Defendant not to keep track of the proceedings which were pending in this Court for nearly ten years. The Stevedores Association was not a party to the suit. The Vakalatnama was signed by the Defendant in favour of the Advocate concerned. The suit came up on board on several occasions. It is evident from the Roznama that on the date immediately prior to the passing of the ex-parte decree, the Advocate was present before the Court. No affidavit of the Advocate has been filed in these proceedings to establish either the reasons for non-appearance or the sufficiency of the grounds in that regard. The Defendant is a business entity carrying on the business of Stevedoring. There is absolutely no reason or justification for the failure of the Defendant to file a Written Statement for a period of over ten years and for non-appearance before the Court on diverse dates. Even according to the Defendant, the suit had come on board on several occasions despite which no 5 written statement was filed. -6. Upon perusal of the case made out by the Defendant in the affidavit in support of the Motion, it is evident that no sufficient cause has been shown. Order 9 Rule 13 of the Code of Civil Procedure, 1908 empowers the Court to set aside an ex-parte decree if the Court is satisfied that the summons was not duly served or the Defendant was prevented by sufficient cause for appearing in the suit when the suit was called out for hearing. In the present case, as already noted earlier, the summons was duly served. Absolutely no cogent or valid explanation is forthcoming as to why no Written Statement was filed in the suit; no application was moved before the Court for setting aside the ‘no Written Statement’ order and transferring the suit to the list of undefended suits; and for not furnishing instructions to the Advocate when the suit was listed on board on diverse dates. -7. A litigant who is indolent cannot be rewarded for his own negligence and lethargy in contesting the proceedings before the Court. Otherwise, the exercise of pursuing litigation to its logical 6 conclusion would be rendered meaningless and a Defendant would rest content in the belief that eventually an ex-parte decree – even if, as in the present case, it is in favour of a statutory board for the recovery of its dues – can be set aside merely upon the payment of costs. While the Court ensures that equitable powers are utilized so as to prevent manifest injustice, the judicious exercise of the discretion of the Court cannot come to the aid of a litigant whose conduct does not furnish a reasonable explanation for his absence from proceedings. 8. For all these reasons, no case is made out for setting aside the ex-parte decree. The Notice of Motion shall accordingly stand dismissed. .....