1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2533 OF 2008 IN NOTICE OF MOTION NO.1025 OF 2006 IN SUMMARY SUIT NO.2739 OF 2005 ALONGWITH NOTICE OF MOTION NO.2534 OF 2008 IN SUMMONS FOR JUDGMENT NO.711 OF 2005 IN SUMMARY SUIT NO.2739 OF 2005 Sanjay Darooka & Anr. ..... Plaintiffs V/s M/s Hindustan Insecticide Ltd. ..... Defendants. Ms. Usha Srivastav i/b Cansulta Juris, advocate for the applicants/original defendants in support of the Notice of Motion. Ms. Mili V. Thakkar a/w Shri Girish Desai a/w Ms. S.V. Thakkar i/b Mr. Rajan V. Thakkar & Ms. S.V. Thakkar, advocates for plaintiffs. CORAM: V.M. KANADE, J. DATE : 9TH NOVEMBER, 2009 2 P.C.: 1. Both these Notices of Motion are being disposed of by this common order. 2. Heard. 3. Defendants have taken out Notice of Motion No. 2533/2008 for setting aside the order dated 5/9/2006 in Notice of Motion No.1025/2006 and for direction to hear the said Notice of Motion on merits. Defendants have also taken out this Notice of Motion No.2534 pf 2008 for setting aside the order dated 5/9/2006 passed by the learned Single Judge in Summons for Judgment No.711 of 2005 and for a direction to hear the said Summons for Judgment on merits. 4. By an order dated 5/9/2006, the learned Single Judge has passed the following order. P.C: The learned Counsel for the Plaintiff states that the Defendant has been 3 served with summons for judgment. Defendant has filed reply. The principal defence raised by the Defendant was that there is an arbitration agreement in existence between the parties. Defendant had, therefore, taken out Notice of Motion No.1025 of 2006 under section 8 of the Arbitration & Conciliation Act. But that Notice of Motion has been disposed of. None appears for Defendant. I have perused the reply. From the reply it appears that the Defendant is not disputing that he has received the goods, for the recovery of price of which the present suit has been filed. From the reply, I do not find any substantial defence raised by the Defendant. Defendant is, therefore, not entitled to leave to defend the suit. The summons for judgment is granted. Suit of the Plaintiff is decreed in terms 4 of prayer clauses (a), (b) & (c). Refund of court fees as per rules.” 5. The said order was passed on merits after perusing the reply filed by defendants and also taking into consideration the defence raised by defendants. It is necessary, therefore, to take into consideration the brief facts of the case. 6. Plaintiffs filed Summary Suit No. 2739/2005 (Lodging No.2108/2005) for recovery of Rs 5,15,545/-. It is the case of plaintiffs in the said Summary Suit that defendants floated a tender, inter alia, for supply of Isopropyl Alcohol on 8/4/2003 and plaintiffs offered to supply the said goods to defendants and, accordingly, purchase order dated 25.07.2003/29.07.2003 for supply of 30 MT of Isopropyl Alcohol was issued by the defendants. It is the case of plaintiffs that, accordingly, the said goods were supplied and delivered to the defendants and delivery was accepted by defendants. On non-payment of the said amount by the defendants for the goods ordered and supplied by plaintiffs, a summary suit was filed and plaintiffs obtained leave under clause 12 of the Letters Patent and Summons for Judgment was filed. Reply was filed by defendants to the said Summons for Judgment and in 5 the said reply it was alleged that there was an arbitration clause in the said agreement and, as such, it was contended that the said suit was not maintainable. It was further contended that plaintiffs had delivered 20 MT of Isopropyl Alcohol as alleged and further it was contended that it was specifically agreed that the Court in Panvel or Alibag would have jurisdiction to decide any dispute. Defendants also took out Notice of Motion being Notice of Motion No.1025 of 2006 in which it was prayed that the suit may be dismissed in view of clause 12 of the terms and conditions of the said agreement between parties. The matter appeared before the learned Single Judge and the Notice of Motion No.1025 of 2006 taken out by the defendants was dismissed and the Summons for Judgment No.711 of 2005 was allowed and the suit was decreed. Against the said orders dated 05/09/2006 passed in Notice of Motion No.1025 of 2006 and in Summons for Judgment No.711 of 2005, defendants filed an appeal being Appeal No.814 of 2007 (Lodg. No.54/2007) and an appeal being Appeal No.213 of 2008 (Lodg. No.53/2007) respectively. The said appeals were withdrawn and, thereafter, the present Notices of Motion have been filed for setting aside the order passed by the learned Single Judge dated 5/9/2006. 7. Counsel appearing on behalf of defendants 6 vehemently urged that in view of the arbitration clause, the suit itself was not maintainable. It is further submitted that Panvel and Alibag Court had jurisdiction to decide this dispute and, therefore, the ex parte order was liable to be set aside and the suit was liable to be dismissed. It was further contended that in view of liberty granted by the appellate court, defendants had took out the present Notice of Motion and, therefore, there was delay of only 36 days in filing this Notice of Motion. It was submitted that the ex parte order was passed by the learned Single Judge and since defendants had good case on merits, the said order should be set aside. 8. On the other hand, the learned Counsel appearing on behalf of plaintiffs firstly submitted that there was gross delay in filing this Notice of Motion and there was delay of 21 months in taking out the Notice of Motion. No sufficient cause was shown for delay in filing the Notice of Motion. It was further contended that since the appeal filed by the defendants was withdrawn and no liberty was granted by the appellate court, the present Notice of Motion itself was not maintainable. It was further contended that the decree was satisfied, upon defendants depositing decretal amount before the executing court and, therefore, on that ground also, present Notice of Motion had 7 become infructuous. Lastly, it was contended that no special case is made out by the defendants for setting aside the order which was passed by the learned Single Judge and special circumstances as laid down under Order XXXVII Rule 4 were not made out by defendants. It was submitted that in the case of summary suit in view of specific provisions of Order XXXVII Rule 4, it is incumbent upon defendants to make out special circumstances for setting aside the ex parte order. In support of the said submissions, the learned Counsel appearing on behalf of plaintiffs relied upon the judgment in Rajni Kumar Vs. Suresh Kumar Malhotra reported in AIR 2003 SC 1322. 9. I have heard both the Counsel at length. In my view, no case is made out by defendants for setting aside the order dated 05.09.2006 passed by the learned Single Judge in Summons for Judgment No.711 of 2005. Defendants had preferred an appeal being Appeal No.213 of 2008 against the impugned order and the following order was passed by the Division Bench of this Court on 25.04.2008:- P.C.:- 8 The learned Advocate for the appellant states that in order to enable the appellant to move before the learned Single Judge who has passed the impugned order for appropriate relief in the matter, the appellant craves leave to withdraw the appeal. The appeal is accordingly allowed to be withdrawn. In view of withdrawal of the appeal as above, the Registry to refund the Court fee to the extent permissible in law and by following the prescribed procedure of law. The appeal stands disposed of as withdrawn.” 10. Perusal of the aforesaid order clearly reveals that no liberty was granted by the appellate court to the appellants to move the learned Single Judge and the appeal was allowed to be withdrawn without any liberty. Firstly, therefore, delay in filing the Notice of Motion therefore has to be counted from the date of the impugned order i.e 05/09/2006 to the date of filing of the present Notice of Motion. There is, therefore, a gross delay of 21 months in filing this Notice of Motion. Apart from delay 9 caused in filing this Notice of Motion, no sufficient explanation has been given for condonation of delay. The learned Single Judge in his order dated 05/09/2006 has also noticed that in the reply filed by defendants to the Summons for Judgment, defendants had not disputed that they have received goods and for the recovery of the price for the goods so supplied, present suit has been filed. Further, the learned Single Judge also observed that there is no substantial defence raised by defendants. Plaintiffs in the plaint have relied upon the Delivery Challan dated 25/7/2003 which was signed by the Store In-charge of the defendants. The invoice also mentions that the jurisdiction would be Mumbai. As such, the contention of defendants, even otherwise on merits, that this Court did not have jurisdiction to hear and decide the suit itself is without any substance. The goods were received by defendants at Mumbai. Plaintiffs also were granted leave under clause 12 of the Letters Patent by this Court which fact has been conveniently suppressed by defendants in the affidavit in support of the Notice of Motion. 11. So far as the arbitration clause is concerned, it is rightly contended by the learned Counsel appearing on behalf of plaintiffs that the arbitration clause provided that “all dispute 10 and differences arising between the parties in respect of order/contract or breach thereof” should be referred to arbitration. According to plaintiffs, there was no dispute in respect of the order or breach of the order since defendants had accepted delivery of goods and had acknowledged the same in the Delivery Challan. 12. Apart from this, after the suit was decreed by the learned Single Judge, on 9/1/2009 an application was made for transfer of ex parte decree dated 05/09/2006 to the Civil Judge, Senior Division, Panvel for execution and for issuance of certificate under Order XXI Rule 6(B) and (C) of the Civil Procedure Code, 1908. Accordingly, on 29/01/2009, ex parte decree was transferred by this Court to Civil Judge, Senior Division in a sealed envelope. On 15/4/2009, Execution Application No.20/2009 was filed and numbered in Panvel Court. On 15/4/2009, an order was passed for issuance of notice on the judgment debtor and the matter was adjourned to 18/6/2009. Notice was served on the judgment debtor on 16/6/2009 on which date the judgment debtor remained absent and, therefore, the matter was adjourned to 02/07/2009. The matter was, thereafter, posted for further hearing on 23/07/2009 on which date also the judgment debtor remained absent. On 11 27/08/2009, warrant of attachment was issued and the bailiff went to defendants’ office for attachment on 23/09/2009 and, thereafter, defendants deposited cheque of Rs 10,80,902/- towards the decretal amount. On 25/9/2009, an application was filed by the decree-holder for issuance of warrant of attachment for the balance amount and for withdrawal of the amount. Thereafter, judgment-debtor filed an application for stay to the order of withdrawal for 15 days. A reply filed by the judgment debtor to the application of the decree-holder for recovering the additional interest, in which it was claimed that the decree- holder could not claim additional interest. 13. From the aforesaid facts it is abundantly clear that the decretal amount was deposited by the judgment-debtor. No steps were taken by judgment-debtor to challenge the impugned order dated 05/09/2006, though the Notice of Motion was filed in June 2008. Lastly, no special circumstances have been made out by defendants for setting aside the decree. Therefore, ratio of the judgment in the case of Rajni Kumar (supra) squarely applies to the facts of the present case. The Apex Court in the said case has observed as under:- “10. It is important to note here that the 12 power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the Court to grant leave to the defendant to appear to summons and defend the suit if the Court considers it reasonable so to do, on such terms as Court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is 13 filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend this suit in the prescribed period, the Court is empowered to grant leave to defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect Rule 4 of Order 37 is different from Rule 13 of Order 9.” In the present case also, defendants have not made out any special circumstances for setting aside the decree passed by the learned Single Judge. Defendants, after having received the goods for which purchase order was placed by defendants, did not pay the amount towards the goods delivered and after the 14 movables were attached and the entire decretal amount was deposited in the Court, it is urged that the said decree may be set aside. 14. In my view, no case is made out by defendants for setting aside the said order. There is no merit in the submissions made by the learned Counsel appearing on behalf of defendants. Both the Notices of Motion are accordingly dismissed. 15. At this stage, learned Counsel appearing on behalf of defendants applies for stay of this order. No ad-interim relief was granted in these Notices of Motion and, as such, question of granting any further stay does not arise. 16. Both the Notices of Motions are accordingly disposed of. (V.M. KANADE, J.)