1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2347 OF 2007 IN SUMMARY SUIT NO.2764 OF 1994 Pol India Agencies Ltd. : Plaintiffs. Versus New Engineering Works & Anr. : Defendants. Mr.S.C.Naidu with Mr.N.P.Dalvi and Mr.S.R.Ingule i/by C.R.Naidu & Co. for the Plaintiffs. Mr.Jaideep Raut i/by Mr.Prakash Choudhary for Defendant No.1. CORAM : R.M.SAVANT, J DATED : DECEMBER 16, 2008 P.C. 1. By the above Notice of Motion, the Defendant No.1 seeks the following reliefs :- (a) that the delay if any in taking out the present Notice of Motion be condoned; (b) that the exparte decree dated 16th 2 January, 1995 passed in the above Summary Suit be set aside and the Plaintiffs be directed to serve the Summons for Judgment upon the Defendant No.1. (c) that the effect, implementation and the execution of the ex-parte decree dated 16th January, 1995 be stayed and/or set aside, till further order. 2. The above suit has been filed by the Plaintiffs claiming an amount of Rs.24,40,092/- together with further interest on Rs.20,20,376/- at the rate of 24% p.a or at such other rate as this Court may deem fit and proper from the date of filing of the suit till payment and/or realization as set out in the particulars of Claim Exhibit `P' annexed to the Plaint. 3. The above suit had proceeded exparte against the Defendant No.1 and a decree came to be passed on 16th January 1995. The order of the learned Single Judge who passed the exparte decree records that the 1st Defendant has been duly served and that none appears for the 1st Defendant. The order further records that the 3 affidavit of service filed by the Plaintiff of the service being effected on the 1st Defendant is taken on record and marked as “Exhibit-A” 4. Whilst seeking setting aside of the exparte decree dated 16th January 1995, it is the case of the Defendant No.1, through its proprietor, that the writ of summons in the above suit was never served upon him. It is his further case that he became aware of the exparte decree passed on 16th January 1995 when a copy of the Chamber Summons filed by the Plaintiffs in the execution proceedings was served upon him some where in the 2nd week of May 2006. It is the further case of the Defendant No.1 that after the said Chamber Summons was served upon him, a search was taken in the Department of this Court through his present advocate. During the course of which search, the affidavit of service of writ of summons or the Summons for Judgment was not found. The Defendant No.1 has filed an affidavit in rejoinder wherein it has now been stated that the report of the bailiff about the service being effected on the Defendant No.1 was not available in the office record and that a xerox copy of the report of the bailiff as furnished by the advocate for the Plaintiffs 4 was found. It is the further case of the Defendant No.1 that the averments made in the affidavit in service are contrary to the report of the bailiff which is annexed to the affidavit of service. The Defendant states that he is not aware of one Mishra whose name is mentioned in the report. It is further his case that he is the sole proprietor of Defendant No.1 and has never given any authority either expressly or impliedly to any Mishra who has allegedly refused to accept the writ of summons. It is, therefore, the case of the Defendant No.1 that the aforesaid facts constitute the special circumstances on account of which the Defendant No.1 could not appear in the said suit as he was never served with the writ of summons. 5. It is also contended on behalf of the Defendant No.1 that the Plaintiffs' addressed mentioned in the cause title of the Plaint should have been Janjikar Street, Mumbai 400003 in stead of 7, Tejpal Industrial Estate, Andheri Kurla Road, Sakinaka, Mumbai 400 072. According to the Defendant No.1, the Plaintiffs having corresponded with the Defendant No.1 at the address of Janjikar Street ought to have served the summons at the said address. 5 6. On behalf of the Plaintiffs, an affidavit in reply has been filed to the above Notice of Motion opposing the reliefs sought for by the Defendant No.1. It is contended on behalf of the Plaintiffs that this Court whilst considering the above Notice of Motion would have to go by the record of the proceedings. Since it has been specifically recorded in the order dated 16th January 1995 that the affidavit of service of the writ of summons was taken on record and marked as “Exhibit-A” it would not be open for the Defendant No.1 now to challenge the said record. It is further contended on behalf of the Plaintiffs that the application filed is beyond the period of limitation prescribed for the same. It is the further contention of the Plaintiffs that it is now not open for the Defendant No.1 to assail the report of the bailiff by contending that the said Mishra was never appointed by the Defendant No.1 etc. as the writ of summons was served at the address of the Defendant No.1. It is further contended on behalf of the Plaintiffs that the notice under Order XXI Rule 22 of the Code of Civil Procedure dated 11th October 1998 was returned “unclaimed”. The execution proceedings there after had come up before a learned 6 Single Judge of this Court on 1st February 2002, when on the said date, an order of issuance of the warrant of attachment was passed against the Defendant No.1 under Order XXI Rules 43 and 54 of the Code of Civil Procedure. Thereafter on 28th March 2002 the warrant of attachment came to be issued and subsequently on 30th April 2002 the same came to be partly executed and, on 8th June 2004 a warrant of sale was issued. According to the learned counsel for the Plaintiffs these are all judicial proceedings and, therefore, it is impossible to believe that the Defendant No.1 was not aware of the ex-parte decree and became aware as stated by him in his affidavit in support of the Notice of Motion only in November 2005. It is further contended on behalf of the Plaintiffs that the Defendant No.1 has been changing his case. In para 2 of his affidavit in support it is stated that in November 2005 he became aware that some proceedings are filed by the Plaintiffs against the Defendant, whereas in para 4 it is stated that in May 2006 he became aware for the first time of the exparte decree dated 16th January 1995. It is further contended on behalf of the Plaintiffs, by relying upon the affidavit of the Defendant No.1 filed in Chamber Summons No.1386 of 2005 in which affidavit in para 6 the 7 Defendant No.1 has stated that he reserves his right to take out appropriate proceedings to set aside the warrant of attachment, since the warrant of attachment is dated 28th March 2002, the knowledge of exparte decree has to be attributed to the Defendant No.1 from 28th March 2002 and, therefore, the case of the Defendant No.1 that he became aware for the first time in November 2005 or May 2006 cannot be accepted. 7. In so far as point of limitation is concerned, it is the case of the Defendant No.1 that the above Notice of Motion filed in May 2007 is within time. Relying upon the IIIrd Division of the Limitation Act and also on the Judgment of a Division Bench of this Court reported in AIR 1958 Bombay 10, in the matter of P.N.Films Ltd and another v/s. Overseas Films corporation Ltd and the Judgment of a Single Judge of the High Court of Gujarat reported in 1972 GLT 134 in the matter of MSM Universal Tyre and Rubber Co. Ltd. V/s. M/s. Modi Ramanlal Manharlal, it is submitted that in so far as applications for setting aside the exparte decree passed in Summary Suits are concerned, Article 137 of the Limitation Act is applicable and not 8 Article 123 which is in the IIIrd Division. As per Article 137 of the Limitation Act, the period of limitation prescribed is of three years and, therefore, according to the Defendant No.1 since he has acquired knowledge in November 2005, the above Notice of Motion filed in May 2007 is within the period of limitation. 8. I have considered the rival contentions. The issue is whether the Defendant No.1 has made out any special circumstance for setting aside the exparte decree dated 16th January 1995 as postulated in Order XXXVII Rule 4 of the Code of Civil Procedure . It would be pertinent to note that at the time when the said decree was passed, the learned Single Judge who passed the exparte decree took on record the affidavit of service and marked it as “Exhibit-A”. Therefore, the said affidavit of service is now part of the evidence which is on record. This Court, therefore, whilst considering the application for setting aside the exparte decree has to go by what is recorded in the order dated 16th January 1995 and hold that the writ of summons was served upon the Defendant No.1. The Defendant No.1's case that he had not authorised any person by the name of 9 Mishra to refuse the service etc cannot be accepted in view of the fact that the writ of summons was sought to be served at the address of the Defendant No.1. It is not the case of the Defendant No.1 that he does not have an office at the address mentioned in the cause title of the Plaint. Therefore, it is not possible to accept the case of the Defendant No.1 that any special circumstances have been made out by him for non-appearance on the date when the exparte decree came to be passed against him. 9. The case of the Defendant No.1 would also have to be considered in the context of the averments made in the affidavit in support. A reading of the said averments make it ex facie clear that the Defendant No.1 is not candid as regards the exact date when he acquired the knowledge of the exparte decree passed against him. As mentioned earlier in this order, in para 2 of his affidavit in support, the proprietor of Defendant No.1 states that he became aware of the Court proceedings being filed by the Plaintiffs in November 2005 and, thereafter in para 4 he states that be came aware of the exparte 10 decree passed against him in May 2006. In my view, the said case of the Defendant No.1 cannot be accepted in the teeth of the execution proceedings which were filed by the Plaintiffs. It would be significant to note that the warrant of attachment was issued on 28th March 2002 and partly executed on 30th April 2002. If the warrant of attachment is executed in respect of the property of the Defendant No.1 it is highly impossible to believe that the Defendant No.1 was not aware of the exparte decree being passed against him. It appears that only after the warrant of sale was issued on 8th June 2004 that the Defendant No.1 started moving in the matter and the endeavour appears to be to stall the execution of the said decree. In my view, therefore, the knowledge of the decree would have to be attributed to the Defendant No.1 at least from 28th March 2002 when the warrant of attachment came to be issued. Therefore, in so far as the question of limitation is concerned, in my view, one need not go into the aspect whether Article 123 or Article 137 of the Limitation Act is applicable in view of the fact that the knowledge of the said exparte decree would have to be attributed to the Defendant No.1 at least from 28th March 2002 when the warrant of attachment came to be issued. Therefore, 11 assuming that Article 137 is applicable and the limitation period is of three years, the above Notice of Motion filed in May 2007 is beyond the period of limitation prescribed and, therefore, the same is not maintainable. 10. In view of the fact that this Court has come to the conclusion that the above Notice of Motion filed by the Defendant No.1 is not maintainable, in my view, it is not necessary to go into the aspect as to whether, the Defendant No.1 has any case on merits. Suffice it to say that by letter dated 25th January 1993 annexed to the Plaint at Exhibit-C the Defendant No.1 has accepted that the consignment was not cleared by the Defendant No.1 on account of financial problems, as the container is under heavy detention and has requested the Plaintiffs to waive the detention charges. The Defendant No.1, therefore, in terms has accepted its liability in respect of the detention charges. 11. In any event, as postulated in Order XXXVII Rule 4 of the Code of Civil Procedure Code, special circumstances have to be 12 made out, in the facts and circumstances of the above case, in my view, no special circumstances have been made out by the Defendant No.1 and therefore no reliefs can be granted to the Defendant No.1 The above Notice of Motion is accordingly dismissed. [R.M.SAVANT, J]