- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.677 OF 2007 IN NOTICE OF MOTION NO.1352 OF 2007 IN SUIT NO.1102 OF 1991 Life Insurance Corporation ) of India, having its Office ) at "Yogakshema", ) Jeevan Bimba Marg, ) Mumbai - 400 020. ).. Appellants (Org.Defendant No.1) Vs. 1. S.Parekh & Company, ) A partnership firm duly ) registered under Indian ) Partnership Act, 1932, having ) its address at 28, ) Mumbai Samachar Marg, ) Mumbai - 400 020. ) 2. Shailesh Rajnikant Parekh, ) of Mumbai, Indian Inhabitant, ) residing at Nishat House, ) 6 Carmichael Road, ) Mumbai - 400 020. ) 4. Rhythm House Pvt. Ltd., ) A Company having its office at ) 40, Rampart Roaw, Fort, ) Mumbai - 400 023. ) 5. Trade Wings Ltd., ) A Company having its Office at ) 30, K.Dubash Marg, Fort, ) Mumbai 400 023. ) 6. Gautam Sabaji Chitnis, ) of Mumbai, Indian Inhabitant, ) residing at Sneh Savarkar Marg, ) Dadar, Mumbai 400 028. ) 7. Mohommedhussein Alimahomed Curmally) - 2 - of Mumbai, Indian Inhabitant, ) residing at Rukiya Manzil, ) Bhulabhai Desai Road, ) Mumbai 400 026. ) 8. Vinayak Sheshagiri Ubhayakar, ) of Mumbai, Indian Inhabitant, ) residing at Joyeden, 21, ) Mereweather Road, ) Mumbai 400 023. ).. Respondents -- Shri V.Y.Sanglikar for the appellants. Shri Haresh Jagtiani, Sr.Advocate, with Ms Vandana Mehta and Shri Hamed Kadiani, Advocates, i/b Shri Ajay Panicker, Advocate, for the respondent Nos.1 and 2. Dr.Saleha Doctor along with Shri Shekhar Shetye i/b M/s.Pandya Gandhi & Co. for the respondent Nos.3 to 7. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.V.NIRGUDE, JJ DATED : 24TH APRIL, 2008 ORAL JUDGMENT : ( Per Sri R.M.S.KHANDEPARKAR, J) ORAL JUDGMENT : ( Per Sri R.M.S.KHANDEPARKAR, J) ORAL JUDGMENT : ( Per Sri R.M.S.KHANDEPARKAR, J) 1. Heard. Admit. By consent, heard forthwith. The learned advocates for the respondents waive service. This appeal arises from the order dated 22nd August, 2007 passed by the learned Single Judge in Notice of Motion no.1352 of 2007 in Suit No.1102 of 1991. By the impugned order, the learned Single Judge has dismissed the notice of motion. The said notice of motion was taken out for setting aside the ex parte decree passed in the said Suit No.1102 of 1991 on 12th - 3 - March, 1997. The said notice of motion was taken out on 8th June, 2007. 2. The sole ground on which the ex parte decree was sought to be set aside by taking out the said notice of motion was that pursuant to the withdrawal of the brief from the earlier advocate, the appellants had engaged another advocate to represent the appellants in the matter, however, on the relevant day the Vakalatnama on behalf of the appellants by the newly engaged advocate had not filed nor had remained present on their behalf. In the circumstances, the suit came to be decreed ex parte against the appellants. It was further case of the appellants that they came to know about the ex parte decree for the first time on or before 21st June, 2005 when a copy of the decree was sent to them by their advocate. 3. On the other hand, it is the case of the respondents that the appellants had not approached the Court with clean hands and there was suppression of material facts in relation to the knowledge of the disposal of the suit. According to the respondents, it was as long back as in November, 2003 that the appellants were made fully aware of the disposal of the suit as well as ex parte decree and yet the said - 4 - fact was suppressed by the appellants and had not submitted any explanation for delay in approaching the Court as late as in 2007. 4. The learned Single Judge, after hearing the parties and on perusal of the records, held that there was clear suppression of material fact regarding knowledge of the disposal of the suit by the appellants and that itself disentitles the appellants from getting any relief in the matter. It has been clearly observed by the learned Single Judge that the appellants were fully aware in the year 2003 itself about the fact of disposal of the suit and that is apparent from the letter dated 2nd December, 2003 which was received from their advocate by the appellants and further endorsement made on the said letter by one of the officers of the appellants on 9th December, 2003. Inspite of the said knowledge of disposal of the suit as long back as in December, 2003, the appellants had not furnished any explanation for delay in approaching the Court from December, 2003 till November, 2005 and further till April, 2007. The learned Single Judge, after taking into consideration the decisions which were sought to be relied upon, has held that the suppression of material fact about the knowledge of disposal of the suit, which was acquired - 5 - as long back as in December, 2003, disentitles any indulgence being shown to the appellants. 5. Upon hearing the learned advocates for the parties and on perusal of the records, it is seen that undoubtedly on 12th March, 1997 when the suit was decreed ex parte, Vakalatnama executed by the appellants in favour of M/s.Bhaishankar Kanga & Girdharlal was on record and consequently there was proper representation on behalf of the appellants in the said suit. However, nobody had appeared on the said date either from the office of M/s.Bhaishankar Kanga & Girdharlal or any officer of the appellants and consequently, ex parte decree came to be passed. 6. It is true that it was sought to be strenuously argued on behalf of the appellants that as long back as in September, 1996 itself, the appellants had changed their advocate after obtaining no objection from M/s.Bhaishankar Kanga & Girdharlal and they had engaged M/s.Little & Co.. According to the appellants, a senior advocate from M/s.Little & Co. viz. R.K.Mehta was looking after the matter of the appellants. There is also a statement in the original notice of motion which was taken out before the learned Single Judge that another advocate had been - 6 - engaged pursuant to the letter issued on 19th September, 1996. Undisputedly, no copy of any such letter was placed on record before the learned Single Judge, nor it has been placed in this appeal before this Court. It is also true that a letter dated 9th November, 2005 by M/s.Little & Co. was addressed to the Zonal Manager of the appellants. It discloses a statement to the effect that Vakalatnama was executed in their favour but it remained to be filed in the Court. The letter, however, is totally silent about the date of execution of such Vakalatnama by the appellants in favour of M/s.Little & Co. In short, apart from mere claim on the part of the appellants that on the day when the ex parte decree was passed, the appellants had infact engaged M/s.Little & Co. as their advocates in place of M/s.Bhaishankar Kanga & Girdharlal, after obtaining no objection letter from M/s.Bhaishankar Kanga & Girdharlal, there was no document placed on record in the said suit before the learned Single Judge on the relevant day and who had passed the ex parte decree. At the same time, even while disposing the notice of motion by the learned Single Judge, there was no contemporaneous record placed before him which could disclose that in fact, on 12th March, 1997 or prior thereto, the appellants had engaged another advocate and that they had briefed - 7 - M/s.Little & Co. instead of M/s.Bhaishankar Kanga & Girdharlal in the matter. 7. Apart from what is stated above, as rightly observed by the learned Single Judge, the records disclose that M/s.Little & Co. had informed the appellants as long back as in December, 2003 that the suit had already been disposed of on 12th March, 1997 by her Ladyship Dr. (Mrs.) P.D.Upasani. It was also assured in the said letter that they would furnish certified copy of the order. The contents of the said letter obviously disclose a clear knowledge to the advocates M/s.Little & Co. who, according to the appellants, represented the appellants at the relevant time, i.e. in December, 2003, about the name of the Judge before whom the matter had appeared on 12th March, 1997, as also the fact about disposal of the said suit on that day. Though the letter does not disclose how these facts were known to the said advocates, it is but obvious that the advocates must have inspected the file of the matter and on perusal thereof, they must have learnt about the name of the Judge who had presided over the Court on the relevant day and what had transpired on the said day in the said matter. Otherwise, they could not have known the name of the Judge who had presided over the Court on - 8 - 12th March, 1997 in relation to the said suit nor they could have learnt about the fact that the suit was disposed of on that day. Once it is not in dispute that M/s.Little & Co. were representing the appellants on 2nd December, 2003 on which day the appellants were informed by the said advocates about disposal of the suit, the knowledge to the advocates must be presumed to be the knowledge to their client, unless the client comes out with a plea alongwith cogent materials in support thereof about absence of such knowledge. The endorsement on the letter dated 2nd December, 2003 by none other than one of the officers of the appellants does disclose that the suit was disposed of. Undoubtedly, it could be contended that on that day the appellants were unaware of the contents of the order as they were not having certified copy thereof. But, that is not the case of the appellants. On the contrary, except for non-availability of the certified copy of the order for perusal of the appellants, it was to the knowledge of the appellants that the suit was disposed of on 12th March, 1997 by the Court. Any bona fide litigant would have, and for that matter the appellants must have inquired about the nature of the order passed while disposing the suit and certainly records must have revealed to their advocates about the disposal of - 9 - the case and, therefore, they were fully aware of the same at least in November, 2003. Added to this, as rightly submitted on behalf of the respondents, in September 2003 itself, the copy of the decree was actually made available for perusal of the appellants in another suit being Suit No.298 of 1982 wherein the appellants were the defendant No.1. A copy of the written statement filed by the defendant No.2 in the said suit clearly discloses the following averments in paragraph 2(t). "This defendant craves leave to refer to and rely upon the plaint and proceedings in the said Suit no.1102 of 1991 when produced. On 12th March 1997, by an order passed by Her Ladyship the Hon’ble Dr.(Mrs.) P.D.Upasani, the said Suit no.1102 of 1991 was decreed in terms of prayer clauses (a) to (d) and (i) of the plaint. A copy of the said order and decree dated 12th March 1997 is hereto annexed and marked Exhibit "18" Exhibit "18" Exhibit "18"." . The written statement apparently was filed in the month of September, 2003. This apparently discloses that the copy of the decree dated 12th March, 1997 passed in Suit No.1102 of 1991 was made - 10 - available for perusal of the appellants in September, 2003 itself. Inspite of the said fact being known to the appellants, the same was suppressed in the notice of motion taken out by them, and on the contrary, it was sought to be contended that the appellants came to know about the contents of the decree for the first time on 21st June, 2005. 8. Even after having learnt about the contents of the said decree in 2005, it is pertinent to note that the appellants did not think it fit to take out a notice of motion till April, 2007, and the explanation given for such delay is as under:- "We deserve one opportunity to defend ourselves. If the ex-parte decree is not set aside, we will suffer serious prejudice and harm which cannot be compensated in terms of money. We cannot be made to suffer for the default of our Advocates. We have been sincerely and diligently defending the suit. We are a government owned Corporation. We have our own limitations. Our officials get transferred from one Department to another and from one place to another. There is no continuity in handling matters. This also - 11 - contributes to delay. But this delay is not deliberate. We have not been negligent. It is therefore necessary to set aside the ex-parte decree on such terms that this Hon’ble Court deems fit." . In the absence of factual date disclosing sufficient cause for the inordinate delay in approaching the Court, no amount of crocodile tears and/or sermon can satisfy the Court to condone such delay. 9. At this stage, the learned advocate appearing for the appellants stated that the Court may kindly go through the paragraph no.3(k) of the affidavit in support of the notice of motion. The same reads thus:- "On receipt of the letter dated 9.11.2005 we have been corresponding with M/s.Little & Co. for over one year for taking further steps or setting aside the ex-parte decree. Our officials have held nearly one dozen meetings. We also held meetings with counsel. Meetings were held as per our records in November 2005, December 2005, April 2006, June 2006, August - 12 - 2006, October 2006, December 2006, January 2007 and finally in February 2007. Finally being dissatisfied at the way the matter was being handled we have withdrawn all the papers from M/s.Little & Co. on 28.2.2007 and entrusted them to our present Advocate on 7.3.2007 with all the files." 10. Plain reading of the above quoted paragraph 3(k) would disclose that apart from claiming about meetings to have been held, no details have been given about any of such meetings. One wonders as to why so many meetings were at all necessary to decide about filing of the application for setting aside ex parte decree. In any case, merely holding of meetings for a period of two years to decide about filing of application for setting aside ex parte decree cannot be either sufficient cause or justifiable reason for condonation of such an inordinate delay. 11. The Apex Court in one of the judgments which is sought to be relied upon on behalf of the appellants, viz. State of Nagaland v. Lipok Ao & State of Nagaland v. Lipok Ao & State of Nagaland v. Lipok Ao & Ors., Ors., Ors., reported in 2005 AIR SCW 1748, has clearly held that the fact that it is the State which is seeking condonation and not a private party is altogether - 13 - irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. Undoubtedly, the observations were made in a case where the State had approached for condonation of delay and there was sufficient materials disclosed to justify the delay in approaching the Appellate Court. However, fact remains that merely because it is public body, it cannot expect special treatment nor any proviso to that effect can be carved out to the provisions of law comprised under Section 5 of the Limitation Act, 1961. 12. The Apex Court in the very decision has referred to two of its earlier decisions. One in Concord of India Insurance Co.Ltd. v. Nirmala Devi, Concord of India Insurance Co.Ltd. v. Nirmala Devi, Concord of India Insurance Co.Ltd. v. Nirmala Devi, reported in 1979 (4) SCC 365 = AIR 1979 SC 1666, and another in Lala Mata Din v. A. Narayanan, Lala Mata Din v. A. Narayanan, Lala Mata Din v. A. Narayanan, reported in 1969 (2) SCC 770 = AIR 1970 SC 1953. In Nirmala Nirmala Nirmala Devi’s case (supra), Devi’s case (supra), Devi’s case (supra), it was a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy and the delay was, therefore, condoned. In Narayanan’s case (supra), Narayanan’s case (supra), Narayanan’s case (supra), it was held by the Court that there was no general proposition that mistake of counsel by itself is always sufficient - 14 - cause for condonation of delay. It is always depend upon the facts and circumstances of each case and it would be necessary to ascertain whether the mistake is bona fide or is merely a device to cover the mischief. 13. As already observed above, neither the appellants in the notice of motion which was taken out before the learned Single Judge had placed any material on record in support of the claim that in September, 1996 their matter was entrusted to M/s.Little & Co. after obtaining no objection from M/s.Bhaishankar Kanga & Girdharlal, nor any correspondence between M/s.Little & Co. and the appellants disclose as to the date on which the M/s.Little & Co. were engaged for the appellants in the said suit. Certainly, this aspect ought to have been established with sufficient materials in support thereto if at all the appellants wanted to contend that there was bona fide mistake on the part of their advocates in not appearing on the day when the matter had proceeded ex parte. 14. As already stated above, neither the appellants had disclosed any sufficient cause for delay in approaching the Court nor the appellants had come out with the clean hands. It is a clear case of - 15 - suppression of material fact which itself disentitles the appellants from getting the relief in the nature of condonation of delay of 10 years to seek the relief of setting aside the ex parte decree. Besides, there was no disclosure of any cause for delay in approaching the Court. Mere holding of meetings by the officers of the appellants with the advocates for two years from November, 2005 till February, 2007 is no the justification for condonation of delay and by no stretch of imagination it can be said to be a bona fide mistake on the part of the advocates. 15. For the reasons stated above, therefore, there is no case made out for interference in the impugned order and, therefore, the appeal fails and is dismissed with costs. 16. At this stage, the learned advocate for the appellants prays for continuation of the status quo which was directed earlier. However, as we have found that the conduct of the appellants neither warrants any discretionary relief in favour of the appellants, nor the materials on record warrant any order in favour of the appellants, the request for continuation of the status quo is rejected. - 16 - (R.M.S.KHANDEPARKAR, J) (A.V.NIRGUDE, J)