Back
2018 Supreme(Bom) 566
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Bhavesha Suresh Goradia & Another - Plaintiffs
Versus
Aviation Travels Pvt. Ltd & Others - Defendants
Notice of Motion No. 580 of 2018 in Suit No. 2865 of 1994
Decided On : 19-04-2018
For the Plaintiffs : Piyush Raheja, Dharmesh Pandya, i/b Ashwin Pandya & Associates, VA Thorat, Tejas Deshmukh, i/b Manoj Badgujar
For the Defendants : Pratik Seksaria, H.G. Khambete, i/b P. Samant
The obligations of the advocate after filing a vakalatnama and the requirement of personal service of the writ of summons are crucial in determining the validity of legal proceedings.
Headnote:
Misconceived - Ex Parte Order - Bombay High Court (Original Side) Rules - Rule 89, Rule 79, Rule 51 - The court dismissed the Notice of Motion as it was thoroughly misconceived and overlooked the relevant rules of the Bombay High Court. The court discussed the interpretation of Rule 79 and Rule 51, emphasizing the requirement of personal service of the writ of summons and the obligations of the advocate after filing a vakalatnama.
Fact of the Case:
The Notice of Motion was dismissed as thoroughly misconceived and based on incorrect arguments regarding the service of the writ of summons and the validity of the Power of Attorney.
Finding of the Court:
The court found that the arguments presented were misconceived and overlooked the relevant rules of the Bombay High Court. The court emphasized the obligations of the advocate after filing a vakalatnama and the requirement of personal service of the writ of summons.
Issues: Misconceived arguments, interpretation of Bombay High Court rules, validity of Power of Attorney, service of writ of summons.
Ratio Decidendi: The court emphasized the obligations of the advocate after filing a vakalatnama and the requirement of personal service of the writ of summons. The arguments presented were found to be misconceived and based on incorrect interpretations of the rules.
Final Decision: The Notice of Motion was dismissed with no costs, and all interim orders stood vacated forthwith.
1. Not on board. By consent, the Notice of Motion is taken up for hearing and final disposal.
2. The Notice of Motion as currently framed is thoroughly misconceived. It says that there is an ex parte order of SJ Vazifdar J (as he then was) of 7th October 2003, a copy of which is at page 33. This is said to be “ex parte”. It is argued that it is required to be set aside because there was no Notice of Motion filed for a judgment for want of written statement. The argument is misconceived and overlooks Rule 89 of the Bombay High Court (Original Side) Rules. I have already dealt with this aspect of the Rules in a recent judgment in Placido Thomas Aguiar v Elizabeth Lucy D’Souza & Ors. (Notice of Motion No. 1554 of 2017 in Suit No. 241 of 2010, decided on 26th February 2018).
3. The next argument raised is that the order is to be set aside because the writ of summons was never served. The appearance in that order shows that an Advocate was engaged for all the Defendants. That the Advocate was engaged is actually not disputed. Defendant No. 1 today urges that the vakalatnama in favour of that Advocate was executed by a person who claimed to be entitled to do so on the basis of a Power of Attorney. This person, one Mr. K Shrinivas Rao, was, Defendant No. 1 now says, never authorized to represent the 1st Defendant. He held no Power of Attorney.
4. Annexed to the Affidavit in Reply at page 116 is a copy of the letter from M/s. Narayanan & Narayanan, Advocates, forwarding a photocopy of the Power of Attorney in question dated 29th April 1993 said to have been executed by the 1t Defendant in favour of this K Shrinivas Rao. On page 18 of the Power of Attorney (page 134 of the paper-book) is the typed name of the Chairman and Managing Director. There is a rubber stamp of the 1st Defendant. There is a circular common seal of the 1st Defendant. Both have signatures. The Power of Attorney said to have been notarized in Mumbai and the seal of the Notary is also visible. No steps have been taken whatsoever by the 1st Defendant at any time to have this document cancelled. We will leave that aside.
5. Mr. Thorat for the 1st Defendant proceeds on the assumption that there was in fact such a Power of Attorney and there was in fact a validly executed vakalatnama by the Constituted Attorney. His submission is that even if assuming that is so, Rule 79 of the Bombay High Court (Original Side) Rules requires personal service of the writ of summons on a defendant even if appearance was entered on his behalf by an Advocate. Rule 79 says:
“R.79. Undertaking by advocate to accept service.— A Writ of Summons need not be served on a defendant personally, if his Advocate undertakes in writing to accept service, and to file a Vakalatnama.”
6. On the face of it, the interpretation placed of this Rule is incorrect. This speaks of a waiver of the requirement of serving the writ of summons personally if the Advocate undertakes in writing to accept service of that writ of summons and to file a vakalatnama. This obviously contemplates a stage before the vakalatnama is in fact filed. Once the vakalatnama is filed, there is no question of having to thereafter serve a party personally. The form of the vakalatnama in fact says to the contrary and by virtue of the vakalatnama the Advocate is not only empowered but required to accept service on behalf of the person for whom he filed the vakalatnama. Otherwise, the filing of a vakalatnama is completely meaningless.
7. The argument completely overlooks the provisions of our Rules on both the Original Side and the Appellate Side and in particular Rule 51 which is in mandatory terms and speaks of what is to happen after a vakalatnama is filed, viz., that once an Advocate has filed his vakalatnama in a suit or a matter, he “shall” accept service on behalf of his client of all processes issued in the suit or matter until he is discharged.
8. Mr. Thorat bases his construct on a reading of the decision of a Division Bench in Tar
