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2020 Supreme(Bom) 284
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR, J.
One Square Investments Limited and ors. – Appellants
Versus
Capri UK Investments Limited and ors. – Respondents
Notice of Motion No. 1910 of 2019 In Commercial Suit No. 39 of 2012
Decided On : 06-03-2020
Mr. Virag Tulzapurkar, Senior Advocate, a/w Mr. Sameer Pandit, Ms. Sarrah Khambati, i/b. Wadia Ghandy & Co., for plaintiffs.
Mr. Janak Dwarkadas, Senior Advocate, a/w Mr. Sharan Jagtiani, Senior Advocate, Ms.Tammana Naik, Mr Abhineet Sharma, i/b. Voxlaw Advocates And Solicitors, for applicants/original defendants.
The main legal point established in the judgment is that the decree was passed in breach of mandatory procedural rules, and the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and transferring the suit to the list of undefended suits. The Court also found that the defendants had made out a case for condonation of delay in seeking setting aside of the ex-parte decree.
Headnote:
Condonation of Delay - Commercial Suit - Code of Civil Procedure, 1908, Rule 90, Order VIII Rule 10 - The defendants sought to set aside an ex-parte decree passed by the Court. The Court held that the decree was passed in breach of mandatory procedural rules, including Rule 90 of the Original Side Rules and Order VIII Rule 10 of the Code of Civil Procedure, 1908. The Court also found that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and transferring the suit to the list of undefended suits. The defendants were granted four weeks to file a written statement, and the suit was restored to file.
Fact of the Case:
The defendants sought to set aside an ex-parte decree passed by the Court, claiming they were unaware of the listing of the suit and the passing of the decree. They asserted that the decree was passed in breach of mandatory procedural rules, and that they were prevented by sufficient cause from appearing before the Court.
Finding of the Court:
The Court found that the decree was passed in breach of mandatory procedural rules, and that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and transferring the suit to the list of undefended suits. The Court granted the defendants four weeks to file a written statement and restored the suit to file.
Issues: The issues revolved around the legality of the ex-parte decree, the competence of the Prothonotary and Senior Master to prescribe the time limit for filing the written statement, and the sufficiency of the cause for non-appearance by the defendants.
Ratio Decidendi: The Court held that the decree was passed in breach of mandatory procedural rules, and that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and transferring the suit to the list of undefended suits. The Court also found that the defendants had made out a case for condonation of delay in seeking setting aside of the ex-parte decree.
Final Decision: The Court allowed the notice of motion, condoned the delay, set aside the ex-parte decree, restored the suit to file, and granted the defendants four weeks to file a written statement. The operation of the order was stayed for four weeks, while the interim order staying execution of the decree continued to operate.
JUDGMENT :
1. This notice of motion is taken out by the defendants seeking, inter-alia, condonation of delay of 286 days in filing the present application to recall and set aside the ex-parte decree passed by this Court on 29th August 2018, recall and set aside the aforesaid decree, set aside the order dated 21st March 2017 passed by the Prothonotary and Senior Master transferring the commercial suit to the list of undefended suits and also to grant four weeks time to the applicants/defendants to file written statement and contest the suit.
2. This notice of motion arises in the backdrop of the following facts :
(a) The respondents-plaintiffs had instituted the suit principally to compel the defendants to perform the obligation under the Commitment Agreement. In sum and substance, the case of the plaintiffs was that the plaintiff No.1 is a Private Limited Company incorporated under the provisions of the Companies Act, 1956. The plaintiff No.2 is a company incorporated under the laws of the State of Delaware, USA. The plaintiff No.3 is Promoter Director of the plaintiff No.2 and the Director and Executive Chairman of plaintiff No.1. The defendant No.1 is an investment company incorporated in England. The defendant No.2, though a former Director, is in control of defendant No.1. The defendant Nos.3 and 4 are the investors nominated by defendant No.1, whereas defendant No.5 is a Director of defendant No.1.
(b) The defendant No.1 acting through defendant No.5, had executed a Commitment Agreement, dated 23rd December 2009 in favour of plaintiff No.2 whereunder, the defendant No.1 had agreed to invest a sum of US$ 10 million (equivalent to Rs.55,58,00,000/-) in the business of plaintiff No.1- company to fund the acquisition of the portfolios of non-performing assets from financial institutions, to be warehoused with a non-banking finance company under the name and style of Shaha Finlease Private Limited. In part performance of the Commitment Agreement, the defendants invested a sum of US$ 3.7 million in plaintiff No.1-Company on 9th February 2010. Thereafter, the defendants in utter disregard to the Commitment Agreement, sought to unilaterally vary the key terms of the agreement.
(c) The defendants refused to advance any further funds until the defendant No.1’s nominee was allotted 50% shares of the plaintiff No.1-company, in complete variance with the terms of the agreement. The defendants continued to raise unjust and unlawful demands for infusing further funds contrary to the Commitment Agreement. Ultimately, vide communication dated 29th November 2010, the plaintiffs called upon the defendants to invest the balance sum of US$ 6.1 million in discharge of their obligation under the Commitment Agreement. The defendants, however, failed to remit the due amount to the plaintiff No.1-company. The breach on the part of the defendants to perform their obligation under the Commitment Agreement had a cascading effect on the plaintiff No.1. It failed to acquire HSBC Portfolio. Resultantly, the plaintiffs suffered substantial loss including loss of profit and equity to the tune of approximately US$ 242.02 million.
(d) Hence, the plaintiffs were constrained to institute the suit, inter-alia, for the following reliefs :-
(a) this Hon’ble Court be pleased to declare that the Commitment Agreement (Exhibit E hereto) constitutes a valid, binding and enforceable contract between the plaintiffs and defendants and the defendants are bound and liable to discharge their obligations thereunder;
(b) this Hon’ble Court be pleased to order and direct the Defendants to perform their outstanding obligations under the Commitment Agreement and pay to plaintiff No.1 company a sum of US$ 6.1 million [equivalent to Rs.33,90,38,000/-] as subscription amount for 130,318 fully and compulsorily covertible debentures in plaintiff No.1 company to be allotted to defendant No.1’s nominee(s) upon payment of the above-mentioned amount.
(c) this Hon’ble Court be pleased and direct
