Civil Revision No.5009 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Revision No.5009 of 2010 (O&M) Date of decision: 11.11.2010 **** ICICI Bank Ltd. and another . . . . Petitioners Vs. M/s Ohm Forex Services Ltd. . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Manish Jain, Advocate for the petitioners. Mr.D.K. Singal, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) This revision petition is directed against the order dated 07.06.2010 passed by Civil Judge (Junior Division), Chandigarh by which defence of the defendants has been struck off for nonpayment of costs as well as for non-filing of the written statement. The plaintiff filed suit against the Bank (defendants) seeking a declaration that the debit entries charged by the Bank in excess of `0.07 paisa per US Dollar be declared null and void. He further prayed for refund and recovery of `42,57,528/- and a sum of `12,02,961/- as interest on delayed transfer of funds and also sought pendent elite and future interest. As per the zimini orders supplied to the Court by learned counsel for the petitioners, the first order was passed on 27.11.2009 which reads thus: “Present: Counsel for plaintiff. Suit received by assignment. It be checked and registered. Notice of the suit be sent to the defendants for 16.1.10 on filing of PF/RC/Copy.” Civil Revision No.5009 of 2010 (O&M) -2- On the adjourned date i.e. 16.01.2010, following order was passed:- “Present: Counsel for plaintiff. Summon not received back. A fresh notice of the defendant be issued for 13.02.2010.” On 13.02.2010, following order was passed:- “Present: Counsel for plaintiff. Sh. Varinder Arora, Adv. filed MOA on behalf of defendants. Now, case stands adjourned to 18.5.10 for filing POA and W/S on behalf of defendants.” On 18.5.2010, following order was passed: - “Present: Counsel for parties. Neither the power of attorney nor WS filed. Adjournment requested is opposed. Allowed subject to costs of Rs.500/-. Now to come up on 7.6.2010 for filing WS.” Learned counsel for the petitioners submits that on 7.6.2010, the cause list of the Court of Sh. Sanjay Kumar Sharma, Civil Judge (Junior Division) Chandigarh was having about 55 cases in which case at item No.21 was CS/1576/2010 titled as M/s. Indian Yarn Ltd. vs. ICICI Bank Ltd. and at serial No.47 was CS/3116/2009 titled as Ohm Forex Services Ltd. vs. ICICI Bank Ltd. and another. He submits that counsel for the Bank Mr. Varinder Arora was very much present in the Court. He has filed his affidavit dated 09.08.2010 in which the said Advocate has averred that on 07.06.2010 he went to the court of Mr. SK Sharma, Civil Judge (Junior Division) Chandigarh to attend the case listed at Sr.No.47 titled as Ohm Forex Services but the Reader of the Court had informed him that Mr. Arun Dogra, Advocate had already put in appearance and filed his power of attorney. After hearing that, he came back to his chamber and attended to Civil Revision No.5009 of 2010 (O&M) -3- his other work but later on he came to know that Mr. Arun Dogra, Advocate had appeared in some other case of ICICI Bank listed in the same Court on that date and that the Reader had erroneously assumed that he had appeared in the case in which Mr. Varinder Arora had to appear i.e. the present case. It is also averred that he immediately mentioned to the learned Court and requested that the order of striking out the defence may be recalled as it has been inadvertently passed. Learned counsel for the petitioners has further submitted that non-appearance on 7.06.2010 in the present case, at the instance of the petitioners, was due to the aforesaid confusion otherwise the Advocate was very much present. He also submits that had the Advocate Mr. Varinder Arora not been told by the Reader of the Court that Mr. Arun Dogra, Advocate had appeared in the case of ICICI bank, he would have appeared. He also submits that the recording of the impugned order has caused the entire confusion because it is mentioned therein “Present:- Counsel for the parties”. If the Court had specifically mentioned the name of the Counsel for the parties then there would have been no confusion at all because in that case it would have been clear as to whether Mr. Arun Dogra, Advocate had appeared or Mr. Varinder Arora, Advocate. In reply, learned counsel for the respondent has submitted that the petitioners story is concocted because in ground No.(iii) of para No.2 of the revision petition, it has been mentioned that Mr. Arun Dogra, Advocate had entered appearance whereas Mr. Varinder Arora, Advocate, who allegedly had to appear for the Bank was to pay cost. Since neither the counsel for the petitioners in the trial Court was ready with the written statement nor with the costs, therefore, it is only a ploy to overcome the order which has been passed on 07.06.2010. I have heard both the learned counsel for the parties and perused the record with their assistance. To my mind, the whole confusion has arisen only because of the manner in which the impugned order has been recorded by the Reader of the Court. The opening line of the order is, “Present:- Counsel for the parties”. There would have been no confusion had the Reader of the Court recorded the name of the counsel for the parties specifically as to who is Civil Revision No.5009 of 2010 (O&M) -4- appearing for whom but by experience, this Court has found that usually in the trial Courts the zimni orders are being recorded in the aforesaid fashion in which the name of the counsel for the parties and for whom they are appearing is generally not recorded. A trend has developed in which the presence is recorded as “counsel for the parties” or “As above”. In this case, apparently there is a confusion, because there were two cases listed at Sr.No.21 and 47 in the cause list of learned Court against the ICICI Bank. Mr. Arun Dogra, Advocate had appeared but it is not clear from the impugned order as to in which case he had appeared for the ICICI bank. Therefore, the benefit of doubt goes in favour of the petitioners because the learned counsel appearing on their behalf has specifically sworn an affidavit that he was present in the Court but when he came to know from the Reader of the Court that Mr. Arun Dogra, Advocate had appeared on behalf of the Bank in his place and filed his power of attorney, he retraced his steps and returned to his chamber for the purpose of attending to his other work, but as soon as he came to know that Mr. Arun Dogra, Advocate had appeared in some other case of ICICI Bank, he went to the Court and made a request for recalling of the order. I accept the explanation given by the learned counsel for the petitioners and in view thereof, the present revision succeeds and the impugned order is set aside. The petitioner, however, is directed to file his written statement within one week from the date of receipt of a certified copy of this order. But before parting with this order, it would be pertinently mentioned that the learned Courts below in the State of Punjab, Haryana and Chandigarh have generally developed a tendency of not recording the names of the lawyers appearing in their cases and the orders are recorded as “counsel for the parties” or “As above”. Thus taking an inspiration from this case, in order to avoid such situation to repeat in future and for the purpose of good Court Management, I direct the learned Courts in the States of Punjab, Haryana and Chandigarh to specifically record the names of the advocates appearing for the particular parties. Civil Revision No.5009 of 2010 (O&M) -5- The Registrar of this Court is directed to circulate this order to the learned District & Sessions Judges of the Courts in the State of Punjab, Haryana and Chandigarh for compliance of the directions. (RAKESH KUMAR JAIN) NOVEMBER 11, 2010 JUDGE Vivek