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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, V.B. MAYANI, JJ.
Gujarat State Electricity Corporation Ltd. - Appellant
Versus
Vipulkumar Rameshchand Jain - Respondent
R/Special Civil Application No. 1429 of 2019
Decided On : 09-10-2019
Constitution of India,1950 - Article 227 - Civil Procedure Code, 1908Applicant calls in question legality and validity of order passed by Judge Commercial Court - Respondent in Commercial Civil Miscellaneous Application in Commercial Civil Suit - Application came to be instituted by respondent provisions of Order Rule for setting aside an ex parte money decree passed by Commercial Court against defendant in Commercial Civil Suit application Order Rule of C.P.C - preferred by defendant came to be allowed by Commercial Court ex parte judgment and decree passed in Commercial Civil Suit was ordered to be quashed and set aside and Commercial Civil Suit was ordered to be restored to its original file to be proceeded further - Original plaintiff being dissatisfied with impugned order passed by Commercial Court is here before this Court with present application - Senior counsel appearing for respondent in course of hearing of this matter furnished a chronology of dates and events a copy of which also came to be furnished to counsel appearing for original plaintiff - We quote chronology of events with relevant dates so as to give a fair idea – Held, Court held an inquiry and declared that summons had been duly served contention is that once an inquiry is held as contemplated by this rule and once & declaration is made by Court that declaration becomes conclusive and summons must be held to have been duly served and says that if summons was duly served then it is not open to defendant to challenge ex-parte decree on ground that summons was not duly served - Defendant may apply to Court which passed ex-parte decree for an order to set it aside and if he satisfies Court that summons was not duly served Court shall make an order setting aside decree - Therefore is for Court which hears application to set aside ex-parte decree to be satisfied that summons was not duly served - That Court is not bound by decision given by trial Court decision of trial Court as to sufficiency of service is only for purpose of passing ex-parte decree - It is not a decision which can possibly bind defendant because inquiry was held ex-parte and defendant was not represented at that inquiry - Notwithstanding inquiry it is open to defendant to satisfy Court to which he has made an application for setting aside ex-parte decree that summons was not duly served upon him - In a case where service is by registered post can satisfy Court that summons was not duly serve if has not acknowledged receipt of summons on registered packet by showing that statement on registered packet that had refused service of summons was not correct - In this case only evidence of service of summons is endorsement on registered packet endorsement is made by postman and defendant comes before Court and says that he was not in at material time - There is no other evidence on record these decision in directly applies – Petition allowed (Para 79)
JUDGMENT
J.B. Pardiwala, J.
1. By this application under Article 227 of the Constitution of India, the applicant (original plaintiff) calls in question the legality and validity of the order passed by the Judge, Commercial Court, Vadodara dated 20th December 2018 in the Commercial Civil Miscellaneous Application No. 50 of 2018 preferred by the respondent herein (original defendant No. 1) in the Commercial Civil Suit No. 111 of 2018.
2. We take notice of the fact that the Commercial Civil Miscellaneous Application No. 50 of 2018 came to be instituted by the respondent No. 1 (original defendant No. 1) under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.') for setting aside an ex parte money decree passed by the Commercial Court against the defendant No. 1 in the Commercial Civil Suit No. 111 of 2016. The application under Order IX Rule 13 of the C.P.C. preferred by the defendant No. 1 came to be allowed by the Commercial Court. The ex parte judgment and decree passed in the Commercial Civil Suit No. 111 of 2016 was ordered to be quashed and set aside and the Commercial Civil Suit No. 111 of 2016 was ordered to be restored to its original file to be proceeded further. The original plaintiff, being dissatisfied with the impugned order passed by the Commercial Court, is here before this Court with the present application.
3. Mr. Trivedi, the learned senior counsel appearing for the respondent No. 1 herein (defendant No. 1), in the course of the hearing of this matter, furnished a chronology of dates and events, a copy of which also came to be furnished to Mr. Dipak R. Dave, the learned counsel appearing for the original plaintiff. We quote the chronology of events with relevant dates so as to give a fair idea about the facts giving rise to this application as under:
| 1 | 2003-2005 | The Gujarat State Electricity Corporation Ltd. ('GSECL', for short) i.e. Petitioner herein, formerly known as The Gujarat Electricity Board, made several attempts through tenders and even held negotiations with interested parties to dispose off the material/equipments being 3 x 13 MW (derated) Unit Nos. 4, 5 and 6 on "as is where is" basis lying in old Utran Power Plant, Surat. |
| 2 | 'Dec. 2005 | In furtherance of the above, the Respondent No. 1 approached the officials of GSECL and during the course of negotiation held with the Respondent No. 1, GSECL asked the Respondent No. 1 to deposit Rs. 22 Lakhs as Earnest Money Deposit ("'EMD" for short). Accordingly, the Respondent No. 1 deposited Rs. 22,00,000/- by way of three demand drafts in favour of GSECL, all dated 14.12.2005. |
| 3
| 22.02.2005
| GSECL appointed one M/s MSTC Ltd. (˙MSTC', for short) i.e. Respondent No. 2, as its selling agent, to hold an e-auction in respect of sale of Units no. 4, 5 and 6 of old Utran Power station on "as is where is" basis, with a request to collect Rs. 22 Lakhs as prebid EMD from each of the bidders prior to e-auction, meaning thereby, before submitting any bid, the bidders were required to pay Rs. 22 Lakhs as EMD. |
| 4
| 10.03.2006 | The GSECL addressed a letter to MSTC, conveying the commercial terms and conditions binding the parties inter-se and also providing the terms and conditions for prospective bidders. |
| Note: As per one of the commercial terms and conditions i.e. Clause No. 2, the purchaser was to pay an amount of Security Deposit at the rate of 10% of the total sale value accepted (i.e. 50% of Security Deposit will be in the form of Bank Guarantee and 50% in the form of Demand Draft). It also provided that the pre-bid EMD of Rs. 22 Lakhs will be adjusted against the Security Deposit amount and the said Security Deposit should be paid within seven days o | ||
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