The main legal point established in the judgment is the requirement of due diligence, lack of negligence, and honesty in pursuing litigation as essential factors in determining sufficient cause to set aside an ex parte decree.

I.P. Mukerji, J.

1. This is an application under Order IX Rule 13 of the Code of Civil Procedure. It is for setting aside the ex parte decree dated 3rd December, 2014 passed by this court in the above suit. By this decree the defendant was directed to pay Rs. 14,61,60,384 with interest @ 12% simple interest per annum from January, 2010 till payment, to the plaintiff. The writ, of summons was duly served on the defendant. This is certified by the Deputy Sheriff in a certificate dated 16th July, 2014. The parties also admit service of the summons sometime in September 2013.

2. This application of the defendant is signed and verified by a Harkirat Singh Bedi.

3. He says in this application that he is a director of the defendant. The company is entangled in litigation in Delhi, Bangalore and Kolkata. He is constantly moving across the country and abroad. He believes in shooting e-mails to his lawyer, asking them to take care of his litigation. At least that is what he did in this case. After receiving the summons, on 4th December, 2013 he sent an e-mail to M/s. R. Ginodia & Co. Advocates, attaching with it the plaint and writ of summons. He thought that he had done his bit and the said firm through their assistant Manoj Tiwari, Advocate would do the rest. On 11th December, 2013 he enquired of that firm whether they would represent the defendant. Neither the firm said yes nor No. They say that it was never possible for them to appear without a vakalatnama together with an affidavit of competency (see paras 3rd and of the affidavit of Manoj Tiwari for R. Ginodia and Co.), which was never sent to them.

4. In the e-mail of 11th December, 2013 Bedi also said that he had paid the firm Rs. 1,50,000/-. He thought that by making that payment the suit would be taken care of by them, despite the firm continually insisting that unless the vakalatnama was executed in their favour and an affidavit of competency executed and filed in court they would have no authority under the Original Side Rules to represent the defendant.

5. In fact it was submitted on behalf of the firm that the defendant was involved in diverse litigation arising out of section 138 of the Negotiable Instruments Act, 1881 in Kolkata. In that connection a few months before December, 2011, Bedi had paid Rs. 1,50,000/- to the firm as ad hoc payment. Considering the volume of litigation this amount was very low. It was ridiculous on the part of Bedi to think that the amount would also cover the expenses of the suit.

6. The fact remains that Bedi never came to Calcutta for the purposes of this suit. Neither did he send anybody. No vakalatnama or affidavit of competency was executed in favour of R. Ginodia and Co., or anybody else. On 14th November, 2014 the Deputy Registrar Court and Judicial handed over a certificate to the advocate on record for the plaintiff that till 13th November, 2014 the defendant had not entered any appearance. It goes without saying that no written statement was filed. The plaintiff took the opportunity to mention the matter before the court, and get it listed as an undefended suit on 3rd December, 2014. The decree was passed on that day.

7. No matter how vociferous Mr. Mantha, Senior Advocate appearing for the defendant might contend that M/s. R. Ginodia & Co. were contractually bound to defend the case of the defendant, they could not proceed one inch without a vakalatnama in their favour. They did not even have the right to pray for adjournment in court. The defendant did not find it expedient to ask the said firm to send them the draft papers, for execution of the vakalatnama and the affidavit of competency, and thereafter execute them and send them to Kolkata. It is equally astonishing to read in their application that it was only in the first week of July, 2015, while surfing the internet for information regarding their other matters that the defendant came to know that on 3rd December, 2014 the decree had been passed by them.

8. Even after alleg