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2000 Supreme(Bom) 411
IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Dwarka Cement Works Ltd..... Plaintiff.
Versus
Rajnesh Jain... Defendant.
Notice of Motion No. 1531 of 2000 in Suit No. 614 of 1996, decided on 12-6-2000.
Advocates appeared :
Iqbal Chhagla with R.M. Kadam i/b. M. Ranchoddas Co., for defendants in support of Notice of Motion.
D.D. Madon with H.V. Mehta, Ms. Geeta Patel and Ms. Swapnila Rane i/b. A. Ankhad, for plaintiffs to show cause.
Headnote:Order IX, Rule 13 r/w Order XXXVII-Failure of the Advocate - Application for setting aside the ex parte decree passed in summary suit was filed on the ground that the advocate who was dealing with and entrusted with the case failed to take necessary steps required to meet the end of justice of the case. Though the advocate was already dealing the criminal cases of the defendant, the defendant must have made his contact regularly in pursuing the matter of the suit. In absence of his awareness and promptness the matter was delayed by 4 years which is an utter negligence on his part. Therefore, the application deserves rejection.
Order IX, Rule 13 r/w Order XXXVII-Ex parte decree-The defendant was grossly negligent in prosecuting the proceeding before the Court. An educated person cannot pretend ignorance of law, depending solely on his advocate for filing vakalatnama within 10 days which was delayed by 4 years due to only lethargic attitude and tendency to flout the rules and procedure of the Court trying to take the benefit of bona fide belief from the counsel of the opposite party to send back the preceipe with consent for the last 4 years. Therefore, the motion being merit less is liable to be dismissed in respect of the ex parte decree.- The defendant was grossly negligent in prosecuting the proceeding before this Court. Of course, it may be the usual practice in this Court, relying upon the consent of the advocates appearing on other side, vakalatnama could be filed but that should not have deterred the defendant to take a diligent action in prosecuting the matter. One fact remains that the defendant knows that the proceedings against him is pending before this Court and he cannot therefore be in any manner lethargic, thinking that everything will be done by his counsel. It is his duty to contact his advocate every now and then and enquire about the litigation and the developments especially when parallel criminal proceedings that are going on between the parties. Considering the Stakes involved and educational status of the defendant one would expect that he must have been conversant with procedure of a Summary Suit. - person like the defendant cannot pretend ignorance of the rules relevant to this case. Moreover he must have been well advised by his counsel that he should have filed his vakalatnama within 10 days and the vakalatnama has not been filed. In this factual situation waiting indefinitely for receiving the preceipe from the opposite counsel, for filing vakalatnama shows not only the lethargic attitude of the defendant but also shows the tendency of the defendant to flout the rules and procedure. In fact in this case even after three repeated letters, no commitment has been made by M/s. Mulla and Mulla regarding the consent being given for filing vakalatnama. Still for four years after filing of the suit, one cannot think that the opposite counsel will send a preceipe giving the consent enabling the defendant to file vakalatnama. It is to be noted here that parties were putting fierce fights in criminal Courts and one such proceeding was taken up to Supreme Court. In this circumstance I can totally reject the allegation of the learned counsel for the plaintiff that the defendant is trying by his all means to delay the proceedings and to buyout time. The discretion of this Court can be available only in favour of a person who has shown to this Court that he was prevented from prosecuting the case for the reasons beyond his control. That is not the case in this case.
2. This motion is taken out by the defendant mainly to set aside the ex-parte decree dated 13-7-1998 passed against the defendants in Summary Suit No. 614/96. The suit was filed by the plaintiff for recovery of an amount of Rs. 2 crores covered by three cheques said to have been issued by the defendant in pursuance of the agreement entered into between the plaintiff and the defendant dated 22-5-1993. The aforesaid amount was stipulated as the consideration of the expenses, remuneration and services rendered by the plaintiff in securing 51% shares of Catholic Syrian Bank in the name of the defendant. Admittedly those cheques were dishonoured and the above suit was filed for recovery of the said amount.
3. In the affidavit in support of the motion, the defendant sought to explain the delay and/or the grounds of his absence from the Court entailing passing the ex-parte decree on 13-7-1998.
4. The writ of summons of the suit was served on the defendant on 15-4-1996. The defendant has forwarded the papers to one Mr. Menon, Advocate, who was conducting the criminal cases for the defendant, which are pending. One of the criminal cases has been filed by the plaintiff under section 138 of Negotiable Instrument Act for dishonouring the suit cheques and another one was filed by the defendant against the plaintiff under section 420 of IPC for having committed an offence of cheating in carrying out the agreement dated 22-5-1993. It is stated in the affidavit of the defendant that writ of summons received by the defendant was sent to Advocate Mr. Menon instructing him to take necessary steps to defend the matter. But Mr. Menon who is usually practicing in criminal side, did not attend to it, but kept it in his file thinking that the papers relate to criminal cases. When Mr. Menon, in June 1996, was about to undergo a bye-pass surgery, happened to open the file and realized that the papers, which was sent by the defendant relate to a civil suit and then he immediately informed the defendant and advised him to hand over the papers to any Advocate practicing in civil side. Accordingly the defendant collected the papers on 18-6-1996 and entrusted the matter to M/s. Malvi Ranchoddas and Co.
5. It is further alleged in the affidavit in support of the motion, that since the time stipulated under sub-rule (1) of Rule 3 of Order XXXVII was over, the defendant would have to file Vakalatnama only on consent of the plaintiff. Though no such consent was envisaged under Order XXXVII, both the Counsel informed me that it is the practice of this Court that with the consent of the opposite party even if there is a delay in filing the Vakalatnama beyond 10 days stipulated under Order XXXVII, Vakalatnama can be filed. Be that as it may the correspondence ensured between the two lawyer's firm regarding obtaining the consent to condone the delay in filing the Vakalatnama.
6. First the Counsel for the defendant addressed a letter on 19-6-1996 seeking consent for filing the Vakalatnama after 10 days. The precipe for consent letter also has been forwarded along with that letter. No reply was sent by the Counsel for the plaintiff. Again an 24-9-1996 a letter was sent by the Counsel for the defendant to the Counsel for the plaintiff reminding them that they have not forwarded the precipe after obtaining consent. To this letter also they have not sent the reply. On 24-4-1997 the Counsel for the plaintiff was again addressed by sending a reminder and requesting to return the consent precipe duly signed by the Counsel to enable the defendant to file Vakalatnama on behalf of the defendant with a promise to sent a fresh precipe in case the earlier precipe is misplaced. To this letter also no reply was received by the Counsel for the defendant.
7. Thereafter there was no correspondence addressed to the plaintiff's Counsel by the defendant's Counsel till 11-4-2000. On 11-4-2000 i.e. whe
