IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.3793 OF 2007 OF MOTION NO.3793 OF 2007 OF MOTION NO.3793 OF 2007 IN IN IN SUIT SUIT SUIT NO. 3051 OF 1996 NO. 3051 OF 1996 NO. 3051 OF 1996 The Mahanagar Telephone Nigam Ltd. .. .. ..Plaintiffs V/s Irani Khorshed Nosir ..Defendant Ms Jyoti R. Thakkar for the Plaintiffs Mr.N.L.Thakkar i/b M/s Thakordas & Nadgavkar for the Defendant CORAM ; A.A.SAYED, J. DATE : 6TH FEBRUARY, 2009 P.C. 1. This notice of motion has been taken out by the defendant to set aside the exparte order dated 6th October, 2003 decreeing the suit and to condone the delay in taking out the notice of motion. 2. The suit was filed by MTNL- Plaintiffs for recovery of an amount of Rs. 65,966/- with interest @ 18% per annum in respect of dues of telephone bills from the defendant more particularly set out in the plaint. According to the defendant, his average telephone bill varies from Rs.600/- to 800/-.However, :2: he had received bill dated 15th August, 1993 for a sum of Rs. Rs.46,893/- and another bill dated 15th October, 1993 for a sum of Rs.17,385/-. The bills according to the defendant, were exorbitant and excessive and did not reflect the correct usage of the telephone. It is common ground that the matter was at one stage before the 36th Telephone Adalat. It appears that the defendant did not appear before the Telephone Adalat on 10th March, 1999, though according to him, by letter dated 03-03-1999 he had informed the Chief General Manager of MTNL that he would not be able to appear on that day. However, because of the absence of the defendant on that day, the case was closed by the Chief General Manager of MTNL plaintiffs. 3. It is the case of the defendant in the affidavit in support of the motion that he was not served with the writ of summons and therefore, though he was aware that some case has been filed against him, as was informed to him by some of the officers, he was not aware of the particulars of the case and he had even addressed a letter to MTNL-plaintiffs that he was not served with any papers. According to the defendant, he came to know about the ex-parte decree only when he :3: received the letter dated 17.08.2007 on 22.09.2007 from MTNL-plaintiffs informing him about the ex-parte decree. It is the further case of the defendant that the exparte decree was passed without giving him an opportunity to be heard and to file a written statement in the matter and therefore the exparte decree is required to be set aside. 4. The case of the MTNL-Plaintiffs on the other hand is that the packet containing duplicate writ of summons was received back with remarks "Not claimed/Refused" and therefore the same is proper service and therefore, the Court has rightly passed the decree. 5. The learned Counsel for the defendant has pointed out the report of service dated 24th August, 1999 by one Mr. M.H. Gulhane, working in the office of Sheriff at Bombay, wherein he has stated that the packet containing duplicate writ of summons was received back with the remarks "Not claimed/Refused". The learned Counsel for the defendant relied upon the case of Sushil Kumar Sabharwal V. Gurpreet Singh and Sushil Kumar Sabharwal V. Gurpreet Singh and Sushil Kumar Sabharwal V. Gurpreet Singh and others others others, reported in (2002) 5 SCC 377. The learned :4: Counsel has invited my attention to the observations made by the Apex Court in that case, wherein the Apex Court observed that "the Court before exercising its discretion in passing exparte decree must be satisfied that due service of summons was "proved" and that the defendant’s knowledge about pendency of the suit does not amount to his knowledge about the date of hearing". 6. The learned Counsel submitted that no writ of summons was received by him and the defendant was not aware of the particulars of the suit and there was no way he could have followed up the matter and it is in these circumstances, the exparte decree came to be passed. The learned counsel submitted that the ex-parte decree is therefore required to be set aside, and the defendant be granted an opportunity to defend the suit. 7. The learned Counsel for the MTNL-Plaintiffs on the other hand, relied upon unreported judgment in the case of The Mahanagar Telephone Nigam Ltd.V. Texrich The Mahanagar Telephone Nigam Ltd.V. Texrich The Mahanagar Telephone Nigam Ltd.V. Texrich Fabrics Fabrics Fabrics Pvt. Ltd. and anr. Pvt. Ltd. and anr. Pvt. Ltd. and anr. in Suit No. 1884 of 2000, passed by Single Judge of this Court (R.M. Sawant, J.), wherein the Court held - "considering the :5: mandate of section 7-B of the Indian Telegraphs Act, 1885, as expounded by the Hon’ble Apex Court in the case of Telecom District Manager, Goa and Ors. V. V.S. Dempo and Co. and Ors., reported in AIR 1996 S.C. 1545, the matter is required to be referred to arbitration and directed that the Central Government to notify the arbitrator before whom the present dispute will be tried and decided in arbitration. The Arbitrator so appointed shall conclude the arbitration proceedings as expeditiously as possible". 8. Having heard the learned Counsel for the parties and perused the material on record, I am not entirely convinced that the service of writ of summons was effected upon the defendant. The defendant has stated on oath that he has not received the summons and I am inclined to believe the defendant. It is also not clear from the affidavit of service whether the service of summons was "refused" or "unclaimed". It is plausible that the defendant was not aware of the particulars of the suit and therefore could not have pursued the matter. Prima facie, looking at the average of monthly bills and the disputed bills the defendant appears to have a good case on merits and he :6: ought to be given an opportunity to defend the suit. Interest of justice also requires that such snap decisions in suits are to be avoided as far as possible and the defendants are not non-suited on technicalities. In my view, defendant has made out sufficient cause for his absence before the court and for setting aside the exparte decree. In so far as the case of MTNL V. Texrich Fabrics Pvt. Ltd. and anr. (Supra) I would not like to express any opinion, as I am presently only concerned with the issue whether the defendant has made out a case for setting aside the exparte decree. 9. The learned Counsel for the defendant has fairly stated that at one stage the defendant had agreed to pay to MTNL-plaintiffs a sum of about Rs. 30,000/- out of the demand of Rs.65,966/- as and by way of settlement and in order to buy peace and the defendant is ready and willing to deposit the said amount in Court. Taking an overall view of the matter, in the interest of justice, I am inclined to grant an opportunity to the defendant to defend the suit subject to defendant depositing 50% of the principal amount claimed. Hence, I pass the following order: :7: 10. The notice of motion is allowed in terms of prayer clause (a) and (b). Written Statement to be filed within eight weeks. Deposit would be condition precedent and will be without prejudice to the rights and contentions of the parties. The amount to be invested by the Prothonotary & Sr. Master in a fixed deposit of a Nationalised Bank. 11. Notice of motion to stand disposed of. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)