1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 855 OF 2009 IN SUMMARY SUIT NO. 5217 OF 1999 Creative Outerwear Ltd. ...Plaintiff. Vs. Shailesh H. Bajaj ...Defendant. ---- Mr. V. Tulzapurkar, senior counsel with Mr. G.B. Kedia, for the Plaintiff. Mr. E.P. Bharucha, senior counsel with Mr.Z. Andhyarijina i/b Goenka Law Associates, for the Defendant. ---- CORAM: S.J. VAZIFDAR, J. DATED : 15TH SEPTEMBER 2009 P.C. 1. By this Chamber Summons the Defendant seeks the recall and setting aside of a decree passed by this court on 15.04.2002 in the above Summary Suit and for a declaration that it is null, void and non-est. The Defendant has also sought the repayment of the amount paid by him under the decree. 2. This Chamber Summons deserves to be dismissed in any view of the matter. It is a purely speculative proceedings and without any merit whatever. The decree sought to be set aside was confirmed by the Division Bench of this court and by the Supreme Court. Further, the Defendant’s Notice of Motion to set aside the Insolvency Notice taken out by the Plaintiff on the basis of the decree was also dismissed. The Division Bench 2 of this court dismissed the appeal against the judgment and the Supreme court confirmed the judgment of the Division Bench. 3. It was, however, submitted that all the judgments are null, void and non-est and ought to be ignored as they were passed as a result of fraud exercised by the Plaintiff upon the Defendant and the courts. The fraud that is alleged is that the Plaintiff did not disclose that it had allegedly adjusted the repayment of the amounts to the Defendant against the principal amount and not against the interest. If that is so the amount claimed in suit was erroneous. Thus, it is submitted, the orders of this court and of the Supreme Court ought to be set at naught and the suit be decided de novo. 4. There is no dispute that the sum of Rs.1,00,00,000/- was lent and advanced by the Plaintiff to the Defendant in the year 1995 and that the cheques issued by the Defendant towards repayment thereof were dishonoured. The proceedings under section-138 of Negotiable Instruments Act initiated by the Plaintiff are pending. The Defendant had pledged certain shares to secure the repayment of the loans. From time to time the Plaintiff adjusted the dividend received in respect of and the proceeds of the sale of the pledged shares. The Defendant does not deny the fact that the Plaintiff has given him credit for the same. 5. The Defendant having failed to repay the loan the Plaintiff filed the suit inter alia on the dishonoured cheques. The Defendant having filed an 3 appearance, the Plaintiff took out a Summons for Judgment being Summons for Judgment No.26 of 2000 in the above Summary Suit. By an order and judgment dated 15.04.2002 the learned Single Judge, inter alia, held the defences to be dishonest and decreed the suit as prayed. (A) It is important to note that serial no.13 of the “LIST OF DOCUMENTS ON WHICH THE PLAINTIFF WILL RELY” annexed to the plaint reads:-” The Plaintiff relevant books of accounts”. It is also important to note that no application for the production of the same or even inspection thereof was ever made by the Defendant. This aspect has an important bearing on the allegation of fraud and suppression raised on behalf of the Defendant. (B) The Defendant’s appeal (Appeal Lodg. No.389 of 2002) against the said decree was dismissed by a detailed order and judgment of the Division Bench dated 05.06.2002. (C) The Defendant’s petition for special leave to appeal filed before the Supreme Court was dismissed by an order dated 23.09.2002. 6.(A) The Plaintiff thereafter took out an Insolvency Notice being Insolvency Notice No.N/135 of 2002. The Defendant filed Notice of Motion No.120 of 2002 to set aside the said notice. The said Notice of Motion was dismissed by an order and judgment dated 17.01.2003. From the judgment it is clear that the Defendant sought to raise inter alia the same points as were raised in the Summons for Judgment. 4 (B) The Defendant’s appeal against the said order being Appeal No.248 of 2003 was dismissed by an order and judgment dated 20.03.2003. (C) The Defendant ‘s Petition for special leave to appeal to the Supreme Court was dismissed by an order dated 8.5.2003. The Supreme Court recorded the undertaking of the Defendant to pay a sum of Rs.25,00,000/- within a period of three months and the balance amount within three months thereafter. The undertaking in this regard was filed by the Defendant. It was, however, ordered that in view thereof on the Insolvency Petition which may have been filed by the Plaintiff, notice be not published in the newspapers provided that the amount is paid as above and that if the Defendant failed to file the undertaking it was kept open to the Plaintiff to take action in accordance with the law. (D) Thereafter, the Defendant paid the balance decretal amount by 19th August, 2003. The undertaking given to the Supreme Court thus stood discharge. 7. It was contended that I am not bound by the above orders of this court as well as of the Supreme Court as they were passed as a result of the Plaintiff having suppressed certain facts. Mr. Bharucha, the learned senior counsel appearing on behalf of the Defendant submitted that after the above orders were passed and amounts were paid by the Defendant in the proceedings under section 138 the Plaintiff for the first time disclosed 5 certain documents which according to him established that no amount was due and payable by the Defendant to the Plaintiff as claimed in the suit. 8.(A) Firstly Mr. Bharucha relied upon the following notes to the accounts attached to and forming a part of the balance sheets of the Plaintiff for the accounting years ending 31.03.1999 and 31.03.2000:- “In the opinion of the Board of Directors, the current assets, loans and advances have a value which on realization in the ordinary course of business is at least equal of the amount stated in the Balance Sheet except advance given to Mr. Shailesh Bajaj of Rs.6,61,459/- which is considered to be doubtful and no provisions is made.” He submits that the note is an admission by the Plaintiff that only an amount of Rs.6,61,459/- was due and payable by the Defendant to the Plaintiff even as on 31.3.2000. (B) Secondly Mr. Bharucha relied upon an extract from the books of accounts of the Plaintiff titled “Detailed summary statement of Loan Account of Shailesh Bajaj (Defendant) shown in audited balance -sheet of Creative Outerwear Limited (Plaintiff)” 9. Mr. Bharucha submitted that these two sets of documents established that the Plaintiff had throughout adjusted the amounts received by it on the Defendants account towards the principal and not towards interest. He further submitted that this fact suppressed by the Plaintiff in the suit. 10. The case is based entirely on inference and nothing more. Firstly the allegation of suppression is unfounded. Before referring to the documents relied upon by Mr. Bharucha it is necessary to reiterate that the Plaintiff in 6 the List of Documents annexed to the plaint expressly referred to and relied, inter alia, upon its books of accounts. The Defendant was always at liberty to take inspection thereof. In fact the Defendant could have sought inspection thereof even if they had not been relied upon. The Defendant did not do so. Nor is it alleged that if inspection was sought the Plaintiff would have denied the same. Mr. Bharucha did not contend that there was anything on record which even remotely indicated that the Plaintiff would not have produced the books of accounts expressly disclosed in the List of Documents. There is therefore no suppression of any material on the part of the Plaintiff. 11. Even if there was any merit in the contention which there is not, the present application would be unsustainable. If the Defendant had produced or cause to be produced the books of account and raised a defence on the basis thereof the Plaintiff would have had an opportunity of dealing with the same. It is now not open to the Defendant after the entire matter has been decided not once but several times over to allege that the books of account had been suppressed. Nor is it open to the Defendant to raise a new point which could have been raised at the stage of the Summons for Judgment. To permit such a point to be taken now after six rounds of litigation would only ensure that there can never be an end to a proceeding or action. 12. This brings me to the contention on merits. 7 13. Mr. Bharucha submitted that the balance sheet for the assement years ending 31.3.1999 and 31.3.2000 stipulate the figure of Rs.6,61,459/- which is reflective of the manner in which the Plaintiff adjusted the receipt of the said amount and that this is further corroborated by the next document viz. The Detailed Summary of the Defendant’s loan account maintained by the Plaintiff. 14. Neither the summary nor the notes in the balance sheet supports the contention to any extent. Neither of them indicate that no interest was payable. Nor do they indicate that the Plaintiff adjusted the part payments towards principal. It is important to note that it is not the Defendant’s case that interest was not payable. The summary of the loan account in fact does not even reflect any interest. If indeed the submission was well- founded the summary would have indicated the balance interest due at the relevant stage. There is not a whisper of a reference to any interest in the summary. 15. Mr. Tulzapurkar’s contention regarding the reason for the above note in the balance sheet appears to be well-founded. In fact the notes do not even deal with the question of interest. In the affidavit-in-reply, it is stated that the Plaintiff bona fide believed that the recovery of the loan an interest was doubtful and therefore provision for interest on the said loan was not provided for in the books of account and the audited final account. This was obviously for the reason that if reflected it would have had tax 8 implications. Upon the receipt of the amount pursuant to the order of the Supreme Court it was reflected in the accounts and tax was paid thereafter on the same by the Plaintiff. The entire case is based on these documents is of surmises and inferences if not pure conjecture, I see no justification to order a retrial. 16. The case regarding 4000 shares has been dealt with exhaustively in the judgments. It is not open in a proceeding of this nature to reopen the same. 17. In the circumstances, the Chamber Summons is dismissed. The Defendant shall pay the cost of this Chamber Summons fixed at Rs.50,000/- within four weeks from today.