:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.1712 OF 2007 OF MOTION NO.1712 OF 2007 OF MOTION NO.1712 OF 2007 IN IN IN SUIT SUIT SUIT NO.2965 OF 2003 NO.2965 OF 2003 NO.2965 OF 2003 Majestic Car Park Pvt. Ltd. ..Plaintiffs V/s Mansvi Project Pvt.Ltd. ..Defendants Mr.J.A.Udaipuri i/b M.B. Jadhav for the Plaintiffs Mr. Ravindra Parekh i/b Mrs. Shobha S. Pawar for the Defendants CORAM ; A.A.SAYED, J. DATE : 6TH MARCH, 2009 P.C. 1. The above notice of motion is filed on 3rd May, 2007 by the defendants to set aside the exparte decree dated 02/04/2004 passed by a Single Judge of this Court. 2. The suit is a summary suit, which is filed by the plaintiffs against the defendants for recovery of sum of Rs. 3,22,414.97 with further interest on Rs. 2,22,713.97 at the rate of 18% per annum from the date of filing of the suit till payment. According to the plaintiffs, they had carried out certain :2: fabrication of piling liners and some other works for the plaintiffs, who are carrying out work of building railway bridges etc. The plaintiffs’ case is that out of the amount of Rs.9.52,637.95 a balance sum of Rs. 2,33,192.97 after making the adjustment of the part payments, remained due and payable by the defendants to them. The plaint further avers that on or about 23rd August, 2000 the defendants handed over to the plaintiffs their cheque dated 23rd August, 2000, in favour of the plaintiffs for a sum of Rs.1,00,000/- in part payment of the balance of Rs. 2,22,713.97 which came to be dishonoured on the ground - "exceeds arrangement". The cheque was presented again however again the same was returned as dishonoured. 3. It is the case of the defendants in the affidavit in support of the notice of motion that the plaintiffs have obtained exparte decree on the basis of false report of bailiff showing that the defendants left their office premises six months prior to the bailiff’s visit to the office of the defendants. According to the deponent of the :3: affidavit, Mr. Rajaram Masane, who is the Managing Director of the defendant-Company, there was no service of writ of summons upon the defendants and he was not aware about the filing of the present suit and passing of the exparte decree. It is the case of the deponent that he came to know about the exparte decree only when the bailiff came to his residence on 19-07-2005 with warrant of execution and attached the residential flat and other articles belonging to him and his family members as well as the office premises. At that time Mr. Bijendra Singh and Mr. Bhupendra Singh, who were the Directors of the plaintiffs were also accompanying the bailiff. Thereafter the deponent approached his advocate who addressed a letter to the plaintiffs and consequently he received the copy of the plaint, affidavit of service and decree etc. and he became aware of the suit and the details thereof and the circumstances under which the exparte decree came to be passed. 4. The affidavit in support further avers that the writ of summons was advertised in news papers. Reference is made to the report of the bailiff which :4: states that on 21-11-2003 the bailiff accompanied by the representative of the plaintiffs visited the office premises of the defendants but they were not found and from inquiries with the security person of the building, the said bailiff came to know that the defendant left the office premises six months back. The said report further states that the said place was pointed out by the plaintiffs. It is further averred in the affidavit that the Managing Director of the defendants/deponent of the affidavit and his wife are the Directors of the defendants and they are residing on the 10th floor of the very building where the office of the defendants is located. It is the case of the defendants that on 21-11-2003 when the bailiff is alleged to have came to the office of the defendants which is located on the 6th floor, for service, the office of the defendants was very much open and working. Moreover the residence of the deponent which is on 10th floor was also open for visitors and deponent’s wife and his daughter were very much present in the house on that day. 5. It is further stated that the above building Megh :5: Malhar Apartment maintains proper security for 24 hours and also maintains visitor’s register wherein the names of all visitors are invariably noted. It is stated that there is no entry in the said register that on 21-11-2003 the bailiff and plaintiffs representatives had visited the defendants’ office. It is further averred in the affidavit that neither the bailiff nor the representatives of the plaintiffs had visited the office of the defendants at any time, It is further stated that the deponent and Mr. Bijendra Singh, who is the Director of the plaintiffs are good friends for a long time and the said Mr. Bijendra Singh was fully aware that the deponent was residing on the 10th floor of the same building in which the office of the defendants is situated and that the said Mr. Bijendra Singh was talking with the deponent almost every alternate day on phone. 6. It is stated that the report of the bailiff is not true and it wrongly mentions that the defendants have left the office premises six months back. The defendants have relied upon the maintenance bills/receipts issued, telephone bills, electricity :6: bills for the relevant period. It is further stated in the affidavit that the plaintiffs have wrongly obtained the exparte decree and have wrongfully attached the personal properties of the Directors of the defendants and the plaintiffs have made false statements on oath. It is further stated that the plaintiffs claim is time barred and the said cheque of Rs. 1,00,000/- issued by the defendants on 23-8-2000 does not save the period of limitation. It is further stated that there is no written contract and therefore the summary suit is not maintainable. It is further averred that the defendants have never received invoice dated 26-7-2000 or the alleged notice dated 7-2-2001 from the Advocate of the plaintiffs and that nothing has been produced to show the receipt of the said notice by the defendants. According to the defendants, they have never written any such letter which is annexed at Exh.F to the plaint, which is on a plain sheet of paper and not on the regular letter head of the defendants and the said letter was forged one and it was not signed by the deponent. :7: 7. According to the defendants, the plaintiffs had played mischief by getting warrant of attachment executed against the properties of the deponent and his family members and misused the machinery of the Court. According to the deponent, it is only when the personal properties of the deponent and his family members were attached on 19-7-2005, that he came to know about the exparte decree. In para 36 of the affidavit in support it is stated that on 2nd September, 2005 the defendants had taken out the notice of motion being Notice of motion No.2501/2005 under Order 9 Rule 13 of Code of Civil Procedure for setting aside the exparte decree dated 2-4-2004 passed in the above suit; however it was realised that the said Notice of Motion was taken out under the wrong provision of law and therefore the same was withdrawn and a fresh notice of motion which is the above Notice of Motion No.1712/2007 was filed under the provisions of Order 37 Rule 4 of CPC. The withdrawal of the notice was informed to the deponent by his Advocate when he came back to Mumbai on 27-4-2007 and the present Notice of Motion has been taken out within one month from the date of :8: withdrawal of the earlier Notice of Motion. 8. The learned Counsel for the defendants submitted that the plaintiffs have managed to get a misleading report from the bailiff in collusion and the said report is incorrect and they were not at all aware about the exparte decree as they were not served with the Writ of Summons. He submitted that though the extract of the Writ of Summons was advertised in Free Press Journal and Marathi Navshakti, since the deponent does read and subscribe the newspapers he was not aware about the suit. The learned Counsel was critical in his comments about the bailiff’s report. He submitted that the said report does not give the correct picture, since it is mentioned in the said report that "the defendant was not staying since last six months back" and that "the defendant was not found on the above mentioned address". The learned counsel submitted that even the affidavit of substituted service dated 15-1-2004 does not disclose the correct picture inasmuch as it is mentioned in this affidavit that "the defendant was not "staying" on the said address since last six :9: months and therefore, the bailiff was unable to serve the writ of summons". The learned Counsel further pointed out that it is falsely mentioned in the said affidavit of Mr.Bijendra Singh that "he is not able to trace out the new address of the defendants for service of writ of summons upon the defendants" and accordingly substituted service was prayed for. The learned Counsel argued that admittedly the deponent, Mr. Rajaram Masane, the Managing Director of the defendants and the Director of the plaintiffs, Mr. Bijendra Singh were good friends and the said Mr. Bijendra Singh was aware that the deponent was carrying on business in the office premises, which was very much running and that the deponent was residing in the same building on the 10th floor. The learned counsel submitted that mischief has been played by the plaintiffs inasmuch as conveniently when he wanted to attach the personal properties of the deponent and his family, the said Mr. Bijendra Singh and his brother, who were the Directors of the plaintiffs accompanied the bailiff to the deponent’s residence with the warrant of execution and attached the residential premises, office premises and other :10: articles and personal belongings owned by him and his family members. He submitted that fraud has been played by the plaintiffs on the defendants and the Writ of Summons was never served upon the defendants and the plaintiffs have managed some how to misuse the machinery of the Court to get the order of substituted service in collusion with the bailiffs. He submitted that at no point of time the deponent was aware of the suit having been filed and he was shocked when the bailiff alongwith the Directors of the plaintiffs came to his residence and attached the office premises as well as residential flat and other articles of the deponent and his family. The learned counsel therefore urged that the exparte decree is required to be set aside as no Writ of Summons was served upon the defendants and sufficient cause is shown for the same and to condone the delay in taking out this Notice of Motion and an opportunity be granted to the defendants to contest the suit. 9. The plaintiffs have filed reply through its director Mr.Bijendra Singh to oppose the motion. According to the plaintiffs, a notice dated 7-2-2001 :11: which is annexed to the plaint was also served upon the defendants. It is stated that the plaintiffs after filing of the above summary suit took steps for service which could not be effected personally by the bailiffs as the defendants’ office was locked and therefore the plaintiffs served the notice to the defendants by publication dated 5th March, 2004 in the news papers namely Free Press Journal (English) and Navshakti (Marathi) and accordingly affidavit of service of publication was also filed. It is stated that the defendants were duly served with the summons and thereafter the matter was placed before the Court on 2-4-2004 and after hearing the plaintiffs this Court was pleased to pass the exparte decree. It is admitted in the reply that on 19th July, 2005 the bailiff of this Court went to the house of Mr.R.R.Masane, Managing Director of the Defendants with Warrant of Execution and attached the residential flat, office premises, other movable articles. It is however, alleged that the said properties belong to the defendants. It is stated that the deponent had accompanied the bailiff to serve the Writ of Summons and that the defendants :12: were not available and hence the same was served by the substituted service. In para 15 it is admitted that he i.e. the deponent and Mr. R.R. Masane are good friends. It is stated that after enquiry they came to know that the defendant was not staying there since six months. It is denied that the plaintiffs misused the bailiff report and got the order of substituted service.It is further stated that the defendants may be directed to deposit the entire decretal amount since the liability is admitted by the defendants. It is further stated that the defendants had taken out an earlier Notice of Motion bearing Notice of Motion No. 2501/2005 after a period of more than 15 months and that the above Notice of Motion is not maintainable on merits even after withdrawal of earlier Notice of Motion. 10. The learned Counsel for the plaintiffs submitted that the present notice of motion is not maintainable since the earlier notice of motion being the Notice of Motion NO.2501/2005 was withdrawn by the defendants without seeking any liberty from the Court to file a fresh Motion. He further submitted :13: that the report of the bailiff indicates that no one was found in the office premises. He submitted that the defendants’ office was locked since six months and therefore, the only course open was to apply for substituted service and accordingly the writ of summons was published in the news papers in accordance with law and thereafter the matter was placed before this Court and ultimately an exparte decree came to be passed by this Court. He submitted that the liability of the defendant is admitted. The learned counsel submitted that the assertions of the defendants in their affidavit have been denied by the plaintiffs. The learned Counsel urged that since no sufficient cause has been made out by the defendants to set aside the exparte decree, the Notice of Motion be dismissed. 11. I have heard the ld. Counsel for the parties and perused the material on record. 12. Insofar as the plea of the Plaintiffs about the non-maintainability of the above Notice of Motion after withdrawal of the earlier Notice of Motion No. :14: 2501 of 2005 without taking any liberty for filing a fresh Notice of Motion is concerned, it is to be noted that no such contention is raised in the Reply of the Plaintiffs. What is averred in para 19 of the Reply is thus- "....I say that Defendants taken out earlier Notice of motion No. 2501 of 2005 application taken out by the defendants after a period of about more than 15 months was not maintainable on merits, even after the withdrawal; the Defendant taken out the present Notice of Motion, in this Notice of Motion also the Defendants have no case in view of these above facts and circumstances, the present application taken out by the Managing Director of the Defendant may be dismissed with compensatory costs". . Moreover, in the Affidavit in Support of the Notice of Motion it is clarified by the defendants that the earlier Notice of Motion was taken out under Order 9 Rule 13, whereas the above Notice of Motion is taken out under the provisions of Order 37 Rule 4. The earlier Notice of Motion, as it appears, was not served on the plaintiffs and it was not decided on :15: merits. It is a settled law that the period between the passing of the exparte decree and the knowledge thereof by the defendants cannot be considered for the purposes of limitation or delay in taking out the Notice of Motion. Considering the above, I am unable to accept the contention of the Plaintiffs that the above Notice of Motion is not maintainable. 13. The other question which I am to consider is whether the defendants have made out sufficient cause or special circumstances to set aside the exparte decree. It will first be necessary to find out whether the writ of summons was duly served on the defendants. For this purpose, it would be necessary to advert to the bailiff’s report, which would be crucial. The bailiff’s report is dated 24-11-03 and it reads as follows: "Defendant are not found. They have already left his office before 6 month. I have attended this service on 21/11/03 at above 12.00 AM at the Defendants address at 63, Megh Malhar Apartment, film city Road, Goregaon (E) Mumbai 400063, but defendant wasn’t :16: found on above mentioned address. After making inquiry with Mr. Suman Rawal, security person of the building. He stated that defendant wasn’t staying since six months back. So it returns unserved upon defendant. The said place was pointed out to the bailiff by plaintiff." Sheriff Office, Bombay. 24/11/03. Sd/- Bailiff" 14. A bare perusal of the bailiff’s report discloses that the defendant company was not served by personal service, by the bailiff. Curiously, the report does not disclose whether the office of the defendants was open or found locked. It is not stated in the report as to what efforts were made by the bailiff to find out the whereabouts of the defendants. No inquiries were made from the neighbours too. The entire report is based on the statement of the security person of the Society one Shri Suman Rawal, to the effect that the defendant wasn’t "staying" there since six :17: months. It is to be noted that the defendants being a Company the question of "staying" cannot arise. It is further stated in the report that the said place was pointed out to the bailiff by "plaintiff". The "plaintiff" being a Company, there was not question of the "plaintiff" pointing out the office of the defendants to the bailiff. 15. The report does not disclose whether the writ of summons was affixed on the outer door of the office, if at all the office was found locked. Apart from the report, there is no "affidavit" of the bailiff on record respecting the service. 16. The report of the bailiff is rather vague and does not inspire confidence. The Chamber Order taken out for substituted service prays for substituted service by (1) affixing (2) publishing extract of writ of summons in the 2 newspapers (3) affixing in conspicuous part of the Court (4) transmitting true copy of the summons under Certificate of Posting and by Registered AD. In the affidavit dated 15-01-2004 in support of the Chamber Order it is stated by Mr. :18: Bijendra Singh, the Director of the Plaintiffs, that he is not able to trace the new address of the defendants for the service of Writ of Summons upon the defendants and it is prayed that "he" may be allowed to paste the writ of summons at the last known address of the defendants and to allow service by publication. Thereafter an affidavit is filed by Mr. Bijendra Singh which is dated 22.03.2004, wherein it is stated that "he" has pasted the Writ of Summons on the outer door of the office of the defendants. It is rather curious as to how any person other than the Bailiff can undertake this procedural exercise. Though, there was a specific order by Assistant Prothonotary and Sr. Master dated 26.02.2004 on the Chamber Order, apparently, the Writ Summons was not sent by Registered AD and UPC. by the plaintiffs to the defendants 17. It is admitted by Mr. Bijendra Singh, the Director of the Plaintiffs in his Reply to the motion that he and the then Managing Director and now Director of the defendants Mr. Rajaram Masane are ’good friends’. It is to be noted that the office :19: premises of the defendants is on the 6th floor and the said Mr. Rajaram Masane is residing in a flat in the same building on the 10th floor and the fact that Mr. Bijendra Singh is aware of the same is not specifically denied in the reply. However, no attempt is made to explain why no effort was made to serve Mr. Rajaram Masane (who was the Managing Director of the defendants) in the matter at his residence. However after obtaining exparte decree, conveniently, the said residential flat address has also been added in the Warrant of Attachment. Thus, the plaintiffs were fully aware of that Mr. Rajaram Masane was residing in a flat on the 10th floor in the same building. 18. That is not all. At the time of issuance of Warrant of Attachment, the names of Mr. Rajaram Masane and his wife Dr. Arpita Masane are added in the Warrant of Attachment and they are described as defendants therein though they are not parties to the suit and the office premises on 6th floor, the residential flat on the 10th floor which are in the personal names of Mr. Rajaram Masane and Dr. Arpita :20: Masane, as also their personal moveable properties are added therein and the said movable and immovable properties are attached in pursuance to the Warrant of Attachment. At the time of attachment the said Mr. Bhupendra Singh as well his brother Mr. Bijendra Singh had accompanied the bailiff. It is thereafter that the Notice of Motion for setting aside the exparte decree is taken out by the defendants. 19. Considering the report of the bailiff and above events that had transpired, it is evident the entire attempt on part of the plaintiffs was to embarrass Mr. Rajaram Masane, who was the Managing Director of the defendants at the relevant time and I am prima facie convinced that the Plaintiffs somehow were interested in getting an exparte decree behind the back of the defendants without serving the writ of summons on them. To my mind there is clearly a cloud insofar as service of the Writ of Summons is concerned and I am not at all satisfied that the service of writ of summons was proper. I am inclined to accept the case of the deponent that it is only :21: when the Warrant of Attachment was executed and the personal properties belonging to him and his wife were attached, that he became aware about the suit against the defendants. The conduct of the plaintiffs is rather wanting and lacking in bonafides and I am inclined to impose costs on them. Prima facie, the defendants are justified in contending that the plaintiffs have managed to get misleading report from the bailiff and that they have misused the machinery of the courts. 20. In light of the above discussion, I have no hesitation in concluding that the exparte decree is liable to be set aside. Sufficient cause and special circumstances have been made out by the defendants to set aside the exparte decree and the defendants are required to be granted an opportunity to contest the proceedings. However, to be fair to the plaintiffs, I do find that the defendants had issued a cheque of Rs. One lac to the plaintiffs which is returned as dishonoured, for which, prima- facie, there is no proper explanation forthcoming from the defendants. :22: 21. Taking an overall view of the matter, in my opinion the following order would meet the ends of justice: (i) The ex-parte decree dated 02-04-2004 is set aside and the suit is restored to file subject to the defendants depositing a sum of Rs. One lac in this Court within a period of 6 weeks from today. The