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2020 Supreme(SC) 208
SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
AVIATION TRAVELS PVT. LTD. – Appellant
Versus
BHAVESHA SURESH GORADIA AND OTHERS – Respondents
Civil Appeal Nos. 1890-1891 of 2020; (Arising out of SLP(C) Nos. 5374-5375 of 2019)
Decided on : 02-03-2020
For the Appellant :R.F. Totla, Ashutosh Dubey, Pritesh Burad, Rajshri Dubey, Abhishek Chauhan, Rajendra A., Sushil Pandey, Advocates
For the Respondent:Shree Prakash Sinha, Marina Wheeler, Rakesh Mishra, Nawalendra Kumar, Mohua Sinha, Shekhar Kumar, Anisha Upadhyay, Advocates
IMPORTANT POINT
Nobody would drag or delay a suit to his detriment.
Headnote:
Code of Civil Procedure, 1908 - Order VIII Rule 10, Order IX, Rule 6 and 13 - Suit by respondent 1 - Appellant neither filing written statement nor - Suit decreed ex parte - Appellant taking out motion for setting aside ex parte decree on the ground that it was not served any notice of the suit - Court directing appellant and respondent 2 to pay damages to respondent 1 with a high rate of interest - High Court dismissing the motion observing that vakalatnama was filed by a person holding power of attorney of appellant - Appellant denying giving any power of attorney to anyone - Suit being for damages against appellant, inconceivable that appellant would not contest the suit - Moreover they would be saddled with interest in case of dragging and delaying the suit by their conduct - appellant deserve an opportunity to contest the suit - Directions given. (Para 15, 16)
Facts of the case:
Respondents No.3 to 6 are present trustees of a private trust known as "Parikh Goradia Trust" and respondents No.7 to 24 are beneficiaries of the said private trust. The appellant carries on business as travel agent and also inter alia of running a restaurant called "Woodlands Garden Cafe" i.e. respondent No.2. Despite the trust having come to an end on the stipulated date, the trustees thereof have failed and neglected to distribute the property and fund of the trust amongst the beneficiaries.
The trust agreed to sell to the appellant a part of the said property for a consideration of Rs.10,00,000/-. Defendant No.1A-respondent No.2-M/s. Woodlands Garden Cafe is a registered partnership firm. The appellant executed a leave and licence agreement with respect to the said premises in favour of respondent No.2-M/s. Woodlands Garden Cafe for a period of ten years to run the restaurant therein. Since the year 1989, respondent No.2-M/s.Woodland Garden Cafe is in occupation and possession of the said premises by doing restaurant business thereon. Respondent No.2- M/s. Woodland Garden Cafe was closed down for repairs and renovations in the year 1992 and in the course of these repairs, the appellant caused considerable damage to the property and carried out unauthorized and illegal construction.
Respondent No.1 filed Suit to direct the appellant (defendant No.1) to pay a sum of rupees one crore to the trust together with interest @ 24% per annum and for permanent injunction restraining the appellant from carrying on repairs and renovations in the premises and also to ensure that no damage or loss or injury is caused to the said property of the trust either in the course of the renovation or the repairs carried out by the appellant and other reliefs. By an ex-parte decree the High Court decreed the suit and directed the appellant and respondent No.2 to pay respondent No.1 and the beneficiaries of the said trust a sum of Rs.77,02,500/- with interest thereon @ 6% per annum from the date of filing the suit till the date of payment or realization.
The appellant took Notice of Motion dated 02.02.2018 praying to set aside the ex-parte judgment and decree dated 07.10.2003 and that the appellant be permitted to file written statement and defend the suit. It was stated that the summons of the original suit and the proceeding thereof were never served upon the appellant at its registered address and/or any other address where the appellant was carrying on its business and also on the ground that Rule 90 of the Bombay High Court (Original Side) Rules has not been followed.
The Single Judge dismissed the Notice of Motion.
Appellant preferred Appeal (Lodging) challenging the order declining to set aside the ex-parte decree. The said appeal was dismissed by the Division Bench. The appellant then filed Review Petition along with the Notice of Motion for condonation of delay of 27 days in filing the review petition. The said review petition also came to be dismissed.
Finding of the Court:
Nobody would drag or delay a suit to his detriment.
Result: Appeals allowed.
JUDGMENT
R. Banumathi. J.
Leave granted.
2. These appeals arise out of the impugned judgment dated 09.07.2018 passed by the High Court of Judicature at Bombay in Appeal (Lodging) No.224 of 2018 in Notice of Motion No.580 of 2018 in Suit No.2865 of 1994 in and by which, the High Court dismissed the Notice of Motion filed by the appellant and declined to set aside ex-parte judgment and decree dated 07.10.2003 passed against the appellant in Suit No.2865 of 1994 and the impugned order dated 26.10.2018 passed in Review Petition (Lodg.) No.20 of 2018 whereby the review petition filed by the appellant was dismissed.
3. Brief facts which led to the filing of these appeals are as under:- Respondent No.1 filed a suit being Suit No.2865 of 1994 before the High Court of Bombay against the appellant and respondents No.3 to 24 for permanent injunction and compensation of Rs.1 crore for trespass, nuisance and damages allegedly made by appellant-Defendant No.1. It is stated that respondents No.3 to 6 are present trustees of a private trust known as "Parikh Goradia Trust" and respondents No.7 to 24 are beneficiaries of the said private trust. The appellant carries on business as travel agent and also inter alia of running a restaurant called "Woodlands Garden Cafe" i.e. respondent No.2. It was stated by respondent No.1 that the trust-Parikh Goradia Trust came into existence under an Indenture of trust dated 01.04.1976. Clause 3 of the said Indenture provides that the trust shall come to an end on 30.09.1985 and the trust fund will be divided amongst beneficiaries of the trust. However, despite the trust having come to an end on the stipulated date, the trustees thereof have failed and neglected to distribute the property and fund of the trust amongst the beneficiaries.
4. By an agreement dated 06.10.1978 executed between the trust and the petitioner and a letter dated 06.08.1982, the trust agreed to sell to the appellant a part of the said property for a consideration of Rs.10,00,000/-. Defendant No.1A-respondent No.2-M/s. Woodlands Garden Cafe is a partnership firm registered under Indian Partnership Act, 1932 by virtue of a partnership deed executed on 01.04.1989. The appellant executed a leave and licence agreement dated 10.04.1989 with respect to the said premises in favour of respondent No.2-M/s. Woodlands Garden Cafe for a period of ten years to run the restaurant therein. Since the year 1989, respondent No.2-M/s.Woodland Garden Cafe is in occupation and possession of the said premises by doing restaurant business thereon. Case of the first respondent is that respondent No.2- M/s. Woodland Garden Cafe was closed down for repairs and renovations in the year 1992 and in the course of these repairs, the appellant caused considerable damage to the property and carried out unauthorized and illegal construction.
5. Respondent No.1 filed Suit No.2865 of 1994 to direct the appellant (defendant No.1) to pay a sum of rupees one crore to the trust together with interest @ 24% per annum and for permanent injunction restraining the appellant from carrying on repairs and renovations in the premises and also to ensure that no damage or loss or injury is caused to the said property of the trust either in the course of the renovation or the repairs carried out by the appellant and other reliefs. Vide order dated 07.10.2003, the Court noted that no written statement has been filed and the Court held that the first respondents claim in the suit is clearly unchallenged. Vide ex-parte decree dated 07.10.2003, the High Court decreed the suit and directed the appellant and respondent No.2 to pay respondent No.1 and the beneficiaries of the said trust a sum of Rs.77,02,500/- with interest thereon @ 6% per annum from the date of filing the suit till the date of payment or realization. By the said ex-parte decree dated 07.10.2003, the Court also granted relief in terms of Clause (b), (c) and (g) (i.e. permanent injunction, mandatory injunction and costs of the suit) o
