Bhojumul Sons v. Shree Rama Trading Co — 1969 DIGILAW 27 (CAL)

JUDGMENT B.C. MITRA, J. 1. This appeal is directed against an order dated January 9, 1967, dismissing the appellant's application for setting aside an ex parte decree passed against the appellant and also for condonation of delay in filing the application. 2. THE suit out of which this appeal arises, was filed on August 31, 1965, for a decree for Rs. 6000/- for damages for breach of contract. The returnable date of the Writ of summons having expired, a fresh Writ was issued on December 22, 1965, with liberty to serve the writ of summons upon the appellnat by registered post. On May 30, 1966, an affidavit of service by registered post on the appellant was affirmed by an Assistant of the Sheriff's office. From this affidavit it appeared that the writ of summons together with a copy of the plaint and a notice were sent to one Kishin Chand at 57, sanyojitganj, Indore, M.P., and that an undelivered packet marked "refused" was received at the Sheriff's office. The second defendant in the suit was the broker in the transaction and he duly filed his written statement in which he admitted the alleged agreement dated January 30, 1965, and further stated that he acted as a common broker in the transaction. The suit appeared before Ray, J., on June 20, 1968, when the plaintiff withdrew the suit as against the defendant No. 2 and an ex parte decree was passed against the appellant for Rs. 6000/- and costs as of an undefended suit. The appellant who was defendant no, 1, in the suit is a partnership firm and carries on business at No. 175, samuel Street, Bombay, as well as at nos. 14 and 57, Sanyojitaganj, Indore, and Kishin Chand B. 'manghnani one of the partners of the appellant was in charge of the management of the appellant's Bombay office. 3. THE appellant's case regarding service of the writ of summons was that the appellant's said partner was present in Bombay throughout the month of February 1966, and particularly on February 7 and 16, 1966, and that during that period he had not been to Indore at all. 3. THE appellant's case regarding service of the writ of summons was that the appellant's said partner was present in Bombay throughout the month of February 1966, and particularly on February 7 and 16, 1966, and that during that period he had not been to Indore at all. According to the appellant no writ of summons was served on the said partner, and there is no person known to the appellant of the name of Kishin Chand, and therefore the purported service of the writ of summons on Kishin Chand at 57, Sanyojitani, Indore, was no service on the appellant. The appellant further alleges that the date of the last endorsement "refused" on the registered cover v/as made illegible in order to deprive the appellant of the opportunity to prove that on that date the said partner of the appellant was not at indore. It is on these grounds that the appellant contended before the Court below that there was no service of the writ of summons firstly because it was not properly addressed to the partner whose full name was Kishin Chand B. Manghnani, but was addressed to one kishin Chand and secondly because the writ of summons could not have been refused by the said partner at Indore because at that time he was in bombay. Ths appellant therefore submitted that there was no service of the writ of summons at all. 4. REGARDING the merits of the claim in the plaint the appellant contends that the respondent No. 2 had no authority to act as the appellant's agent or broker and to enter into any agreement as alleged by the respondent No. 1. On September 27, 1966, the appellant received a letter from Hindustan Lever Limited whereby the appellant was informed that by a garnishee order of this Court they were directed to withhold payment to the appellant of a sum of Rs. 7000/- which was due to the appellant from the said Hindustan lever Limited. On October 4, 1966, the appellant's said partner came to Calcutta and. on enquiry from the office of the said Hindustan Lever Limited came to know for the first time about the institution of the suit and also of the decree made on June 20, 1966. On the next day the appellant's paid partner instructed the appellant's solicitor to take steps for setting aside the said ex parte decree. on enquiry from the office of the said Hindustan Lever Limited came to know for the first time about the institution of the suit and also of the decree made on June 20, 1966. On the next day the appellant's paid partner instructed the appellant's solicitor to take steps for setting aside the said ex parte decree. On October 8.1.965, this Court closed for the long vacation and the last date for filing of the application for setting aside the ex parte decree was the re-opening date of this Court namely November 21, 1956, the appellant's solicitor requested the said partner to come to Calcutta before november 21, 1966, for filing an application for setting aside the ex parte decree. The application was prepared by the Appellant's solicitor during the long Vecation and by a telegram dated november 16, 1966 the solicitor requested the said partner of the appellant to come to Calcutta on or before november 21, 1966, for filing of the application. According to the appellant the said partner informed the solicitor by phone that it would not be possible for him to come to Calcutta on. November 21, 1966, as he was then suffering from acute abdominal pain and therefore it would not be possible lor him to undertake a long journey to calcutta. A request was also made to the solicitor that the application should be sent to Bombay to be affirmed there and to be returned to Calcutta for filing on or before November 21, 1986. On November 18, 1966. the appellant's solicitor sent the application to Bombay, but the 19th and the 20th November 1966, being Saturday and Sunday, the said application was received by the said partner of the appellant on November 21, 1966. According to the appellant immediately on receipt of the application, the said partner affirmed the same before the Registrar and Presidency Magistrate, Esplanade, Bombay, on November 21, 1966 and on the same date the said application was sent by him, through the Indian Air Lines corporation by a special arrangement as a parce to Lokumul Lilaram and company Private Limited, of No. 43, ezra Street, Calcutta. Immediately after despatching the application, a message was sent over the phone to lokumul Lilaram and Company Private Limited, to take steps for taking delivery of the parcel from the office of Indian Air Lines Corporation at Calcutta and to send the same to the solicitor's office at Calcutta. As the Court was closed at 1-30 P M. on November 21, 19g6, on account of the death of Mr. Justice Gopendra Nath Das the time to file the application stood extended till november 22, 1966. The Plane, however, which was due to arrive at 1-30 p. M. on November 22, 1966, reached calcutta on that date at about 4 p. m. on account of bad weather, and due to this delay the application was taken delivery of at about 4-30 P. M. and as a result thereof it could not be filed in court by the appellant on November 22, 1936, which was the last date for filing of the application. As the application could not be filed on November 22, 1966 the solicitor prepared a fresh application with a prayer for condonation all relay and sent the same to the appellant at Bombay for affirmation. On December 8, 1966, the appellant's solicitor received back the second application with the prayer for condonation of delay from Bombay after Court tours. On December 12, 1966, the application was filed in Court and an ad interim order was passed restraining the respondent No. 1, from withdrawing any money from Hindustan Lever limited, It is on the grounds mentioned above that the appellant seeks condonation of delay in filing of the application. 5. A medical certificate from Dr. Gobindram T. Malkani is annexed to the petitioner's application and is to be found at p. 15 of the paper book. When the matter came up before us we directed that an affidavit should be filed by Dr. Malkani in support of the certificate and also that an affidavit should be filed by the appellant's solicitor in support of the allegations in the petition. Leave was also granted to file affidavits by the appellant and the respondent No. 1, in answer to the affidavit by the medical adviser and the solicitor, and such affidavits have been filed before us. 6. THE learned counsel for the appellant contended that the affidavit affirmed by Dr. Leave was also granted to file affidavits by the appellant and the respondent No. 1, in answer to the affidavit by the medical adviser and the solicitor, and such affidavits have been filed before us. 6. THE learned counsel for the appellant contended that the affidavit affirmed by Dr. Gobindram T. Malkani and Bimal Krishna Mitter, Solicitor, fully corroborated the appellant's case in the petition. It was argued that the medical certificate quite plainly showed that the appellant's partner, who was to have come to Calcutta for verifying the petition, was ill at the material date and was medically advised to take bed-rest. It was also argued that the appellant did all that could be done by sending the papers by Air and but for the fact that the plane from Bombay arrived late on November 22, 1966, the application would have been filed within the period of limitation. It was also argued that the delay in arrival of the plane was a matter entirely beyond the control of the appellant and therefore the delay in the circumstances ought to be condoned. The further delay from November 22, 1966, up to december 11, 1966, was, according to the learned counsel, due to the necessity of a fresh application with a prayer for condonation of delay. This application was duly prepared by the schcitor and sent to Bombay again for verification. As to the merits of the application for setting aside the ex parte decree, learned counsel for the appellant submitted that the writ of summons was not served upon the appellant at all and also that it was quite plain that the registered cover containing the writ of summons was not duly and properly addressed to the appellant but was addressed to one Kishin Chand, instead of being addressed to Kishin chand B. Manghnani who was a partner of the appellant. 7. THE learned counsel for the respondent No. 1 on the other hand contended that the appellant had failed to give satisfactory explanation for the delay in filing the application. He argued that it was strange that while the appellant's partner was advised to take bed-rest on November 21, 1966, yet on the same day the said partner went to the Court of the Presidency magistrate for affirming the affidavit in support of the petition. He argued that it was strange that while the appellant's partner was advised to take bed-rest on November 21, 1966, yet on the same day the said partner went to the Court of the Presidency magistrate for affirming the affidavit in support of the petition. It was also argued that from the affidavit of Goindram T. Malkani it appeared that he was approached on November 30, 1966, for a certificate about the illness of the said partner and although this certificate was given by him on that date it was ante-dated to November 21, 1966. It was therefore argued that no reliance could be placed on the affidavit of the medical adviser. 8. IN our view the appellant has sufficiently explained the delay. The petition admittedly was sent by Air on november 22, 1966, and but for the delay in the arrival of the plane on that date, the petition would have been filed within the period of limitation on November 22, 1966. The illness of the appellant's partner and the criticism of the medical certificate becomes immaterial in view of the fact that this question would not have arisen but for the delay in the arrival of the plane from bombay on November 22, 1966. The delay in the arrival of the plane on that date was undoubtedly a matter beyond the control of the appellant. The second application for setting aside the ex parte decree and for condonation of delay had to be prepared as time had expired, and we do not think that in the facts of this case the delay was so enormous as to be fatal to the application. The appellant's case beting that the summons was not served at all as the registered packet containing the writ of summons was addressed to a wrong person, the ex parte decree in our view ought to be set aside. The respondent No. 1, itself is to blame for not sending the writ of summons to the right address and it cannot now be heard to urge that the ex parte decree ought not to be set aside. In our view, the evidence of service of the writ of summons on the appellant is not satisfactory. The respondent No. 1, itself is to blame for not sending the writ of summons to the right address and it cannot now be heard to urge that the ex parte decree ought not to be set aside. In our view, the evidence of service of the writ of summons on the appellant is not satisfactory. But we must also add that the appellant did not show sufficient diligence in making its application for setting aside the ex parte decree and also in making the application for condonation of delay. In the facts of this case this appeal ought to be and is allowed and the order of the court below is set aside. But this order must be subject to certain conditions. The appellant should deposit to the credit of the suit a sum of Rs. 10,000 within eight weeks, such deposit to remain to the credit of the suit until final disposal of the same, as and by way of security for the respondents' claim in the suit. The appellant to enter appearance in the suit within a fortnight of the deposit of Rs. 10,000 mentioned above, written statement to be filed within a fortnight thereafter, discovery to be made within three weeks of the filing of the written statement, inspection forthwith thereafter and the suit to appear in the appropriate prospective list ten weeks after the filing of the written statement. The appellant to pay to the respondent No. 1 the costs of the hearing of the suit thrown away, as also the costs of the court below and the costs of this appeal. In default of the deposit of the sum of Rs. 10,000 being made in terms of this order, this appeal will stand dismissed with costs. All parties to act on a signed copy of the minutes upon their undertaking to have this order drawn up.