Case: M. Ramnarain Private Ltd. And Anr Vs. State Trading Corporation Of India Ltd

The State Trading Corporation, the respondent in this appeal, as plaintiff, filed a suit against the appellant who was the defendant in the suit on the Original Side of the Bombay High Court for the enforcement of the plaintiffs claim for a large amount which inclusive of interest worked out to over Rs.40, 00, 000.00. For the purpose of deciding this appeal, it does not become necessary to refer to the nature of the claim and the averments made by the plaintiff in the plaint for claiming a decree for the said amount against the defendant-appellant. The defendant appellant had contested the claim. The defendant-appellant in the written statement had denied the claim of the plaintiff-respondent, pleaded legal as well as equitable set-off and had made a counter claim. In due course the suit came up for hearing before Bharucha, J. It appears that on the conclusion of the hearing, the defendant-appellant prayed that the defendant appellant might be allowed to pay the decretal amount in the event of a decree being passed against the defendant appellant , in installment in the manner prayed for in an affidavit containing such prayer, filed on behalf of the defendant. The learned single Judge for reasons recorded in his judgment passed a decree in favour of the plaintiff respondent for a sum of Rs. 40, 00, 000.00 with costs quantified at Rs. 42, 750.00, two counsel being certified. The learned Judge dismissed the counter claim of the defendant-appellant without any order as to costs. The learned Judge in the concluding portion o f the judgment observed asThakkar relied upon affidavits filed on behalf of the 1st and 2nd defendants and sought for the payment of the decretal amount a moratorium of 5 years, and after the expiration of the se 5 years, installments of Rs. 4, 00, 000 per annum. He then left it to the Court to fix such installments as it deemed proper. Mr. Doctor opposed the grant of any installment.Neither the facts of the suit nor the averments, such as they are, made in the affidavits would justify the giving of an extended period for the payment of the decretal amount. In the circumstances I order that the decretal amount be paid by monthly installments of Rs. 3, 50, 000 each, the first of such installment to be paid up on or before 7th March, 1981 and subsequent installment on or before the 7th day of each succeeding month. The plaintiffs shall be at liberty to execute the decree for the amount then due in the event of the plaintiff committing any one default in payment of the saidof the judgment commenced on the 12th December, 1980 and was concluded on the 16th December, 1980. On the day of the conclusion of the judgment i.e. 16th December, 1980, three precipes were addressed by the Advocates for the defendant-appellant to the Prothonotary and Senior Master of the Bombay High Court, (1) for certified copy of the decree when drawn up, (2) certified copy of the judgment and (3) for certified copy of the minutes of the order. On the 16th of January, 1981, the Advocates for the Defendant-Appellant addressed a letter to the Prothonotary and Senior Master, High Court Bombay to the followingpleased to take on file the accompanying Memo of appeal along with compilation in duplicate. We also send herewith Vakalatnama duly signed by our clients the appellants above named. Kindly take the same on file.We have to put on record that the appeal is under Order 20, rule 11 of the Civil Procedure Code and Court fee of Rs. 5 is payable. We have to further state that the appeal is in time as certified copy of the order and judgment as well as the decree was applied for on 16th December, 1980 but the same has not been received by us. Appeal is therefore in time.Kindly see that the said appeal is circulated be fore the Chief Justice and Honble Mr. Justice Rege and that the same appeal is called on Wednesday the 21st day of January,memorandum of appeal which was numbered as appeal No. 36 of 1981 and was filed on 20.1.81 by t he defendant- appellantaggrieved by the judgment and order dated 16th December by the Honble Mr. Justice Bharucha directing payment of the Decretal amount by monthly installments of Rs. 3, 50, 000 each, t he appellants beg to appeal therefrom on the following amongst otherthis memorandum of appeal directed against the order of installments, the defendant-appellant had taken 21 grounds and each of the ground related to t he order with regard to the payment of decretal amount by monthly installment of Rs. 3, 50, 000. This appeal No. 36 of 1981 came up for admission before a division Bench of the High Court consisting of the learned Chief Justice and Rege, J. on 21.1.81 a nd when the matter was called on for admission, the counsel for the appellant asked for leave to withdraw the appeal and the appeal was allowed to be withdrawn. The minutes of the Court record-"Appeal allowed to be withdrawn". On 29.1.82 i.e. just after a week of the withdrawal of the appeal No. 36/1981, the defendant-appellant filed an appeal against the judgment delivered on 16th December, 1980 by Bharucha, J. and this appeal was numbered as appeal No. 44 of 1981. The memorandum o f appeal in this appeal states:"Being aggrieved by the judgment dated 16.12.1980, passed by the Honble Mr. Justice Bharucha, the appellant begs to appeal therefrom on the following amongst other grounds."In this memorandum of appeal, the appellant has taken as many as 73 grounds out of which grounds nos. 1 to 53 relate to Judgment and decree on the merits and grounds 54 to 73 relate to the provision as to installments. This appeal i.e. appeal no. 44 of 1981 came up for admission on 3.2.1981 before the same Bench consisting of the learned Chief Justice and Rege, J., when the plaintiff-respondents appeared through their counsel and opposed the admission on the ground that the appeal was not maintainable. The appeal was, however, admitted and the minutes of the Court after noting the appearances record-Admitted. After filing the appeal, the defendant-appellant, made an application for stay of the execution of the decree by way of notice of motion which was rejected by the division Bench. Against the said order of refusal to stay execution, a special leave petition was filed in this Court. For the propose of the present appeal, it does not become necessary to refer to this special leave petition and the proceedings arising therefrom. The appeal came up for hearing before a Division Bench on the 24th of March, 1981 and the hearing continued till 27th March, 1981 and on that date hearing of the appeal was adjourned to 8th April, 1981 as per followingheard Mr. Nariman on the merits of the appeal for almost four days though we had not heard the respondents, we, prima facie, were of the opinion that there was force and substance in several of the contentions raised and the arguments advanced on behalf of the appellants and as the second installment under the said decree was payable by April 8, 1981, we suspended the operation of the decree appealed against pending the hearing and final disposal of the saidof the appeal commenced again on the adjourned date i.e. 8th April, 1981 in terms of the earlier order and continued for some days. It appears that after the appeal had been heard on merits for some days, it was stated on behalf of the plaintiff respondent before the Division Bench that the plaintiff-respondent would be raising a preliminary objection as to the maintainability of the appeal. It was stated on behalf of the plaintiff-respondent that since the defendant-appellant had earlier filed an appeal, being appeal no. 36 of 1981 against the provision regarding installments which had been withdrawn on 21.1.1981 by the defendant-appellant, plaintiff respondent would be contending that the present appeal No. 44 of 1981 was not maintainable. It appears that since the objection was taken at a late stage after the learned counsel for the defendant appellant had addressed the Court on merits for a number of days: the Court permitted the counsel for the defendant appellant to complete the arguments and the Court thereafter proceeded to hear the respondent on the question of maintainability. On 19.6.1981, the Division Bench dismissed the appeal up holding the preliminary objection to the maintainability of the appeal on the ground that the defendant-appellant had, by filing appeal no. 36 of 1981 against the provision relating to installments which the defendant-appellant had withdrawn, abandoned its right to challenge the decree on merits. The Division Bench, however, while dismissing the appeal substituted for the decree of the Trial Court a decree for the sum of Rs. 40, 18, 737.38 with interest on the principal amount of Rs. 18, 18, 451.39 @ 6 percent per annum from the date of the judgment t ill the payment or realisation and maintained the order for costs as passed by the Trial Court.Aggrieved by the judgment and decree of the dismissal of the appeal filed b y the defendant-appellant in the High Court on the ground that the appeal was not maintainable, this appeal has been filed by the defendant appellant with certificate granted by the High Court.

Reasoning:
Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order, the appeal would not be valid and competent unless the further requirement of filing the certified copy had been complied with. At the time when the earlier appeal no. 36 of 1981 had been withdrawn, the certified copy of the decree had not been filed. The said appeal without the certified copy of the decree remained an incompetent appeal. The withdrawal of an incompetent appeal which will indeed be no appeal in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal, if the right of appeal is not otherwise lost by lapse of time or for any other valid reason. We are, therefore, of the opinion that the provisions contained in order 20, rule 11 of the Code do not in the facts and circumstances of the present case deprive the appellant of his right to file an appeal against the decree.The provisions of O. 2, rule 2 of theCode of Civil Proceduredo not stand in the way of the appellant in the matter of filing the subsequent Appeal no. 44 of 1981. Order 2, rule 2 deals with suits and provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Order 2, rule 2(2) further provides that where the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The requirement of Order 2, rule 2(3) is that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. The explanation provides that for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. It is clear from the provisions of Order 2, rule 2 that this rule is applicable only to suits and cannot in terms apply to appeals. Even if an appeal be considered to be a continuation of a suit for certain purposes, the provision of Order 2, rule 2 cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein. Order 2, rule 2, contemplates that at the initial stage of the institution of the suit, the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, has to be made and further deals with the consequences of non- compliance with the requirements of the said rule. It is indeed doubtful whether the principles underlying this rule can be said to be applicable to an appeal. Even if the principles underlying Order 2, rule 2 can be considered to apply to an appeal, the maintainability of the instant case cannot be held t o be affected in any way as the cause of action in respect of the present appeal is entirely different from the cause of action on the basis of which the earlier appeal had been filed.Order 23, rule 1 of theCode of Civil Proceduredoe s not also stand in the way of the maintainability of the instant appeal. The withdrawal of the earlier appeal which was not competent and was no appeal in the eye of the law and which was only concerned with regard to the provision of installment cannot in any way effect the validity of the present appeal. Apart from the incompetency of the earlier appeal No. 36 of 1981, the subject matter of the said appeal was entirely different from the subject-matter of the presentmay further be noted that the provisions of theCode of Civil Procedurecontained in Order 20, rule 11 order 2, rule 2 and Order 23 rule 1 do not in terms deal with any question in relation to the right of appeal or the extinguishment thereof. The aforesaid provisions do not by themselves confer any right of appeal on a party or deprive any party of the right of appeal which a party may enjoy. These are not the statutory provisions which either confer a right of appeal on a party or deprive a party of any such right. We have earlier considered the effect of there provisions and we are of the opinion that these provisions do not in the facts and circumstances of this case have the effect of depriving the defendant-appellant of his right to file the presentthis background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and t hat the defendant- appellant had become disentitled to file the same. The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant-appellant had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment and not against the decree on merits. It is not a case where a party is called upon to elect one of two alternative remedies, when by a election of one of two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries.The withdrawal of the earlier appeal No. 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case, affect in any way the maintainability of the present appeal. We have already held that the earlier appeal No. 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice, in any way, the right of the defendant-appellant to file a proper appeal against the decree. The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter, on the other hand, have a bearing on the conduct of the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against thethe instant case we are not satisfied that the defendant-appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same. Even before any installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged the same long before the question of deriving any benefit thereunder had come. As we have earlier noticed, the defendant- appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same,It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, reallyhave earlier held that no statutory provision deprives the defendant-appellant of his right to file the present appeal. We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well-recognised principle of equity t o deprive the appellant of his very valuable statutory right of appeal. The various passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that the defendant-appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal.