A. P. RAVANI, R. A. MEHTA, J. ( 1 ) THESE proceedings for refund of a huge amount of nearly 50 lakhs of rupees make curious and sorry reading. ( 2 ) FIRST Appeal No. 236/84 by the original defendant-Union of India is against an ex-parte judgment and decree dt. 21/09/1983 passed by Shri H. M. Prajapati 2 Joint Civil Judge Senior Division Jamnagar in Special Civil Suit No. 57 of 1983. The ex-parte decree directed refund of Rs. 47 30 999. 76 ps. (Rs. 35 74 937. 5 export duty and agricultural cess and Rs. 41 62. 26 ps. draw back charges and Rs. 11 15 0 interest) together with future interest at the rate of 10% from date of suit till realisation. ( 3 ) APPEAL from Order No. 114 of 1984 by the original defendant-Union of India is against an order rejecting Civil Misc. Application No. 161 of 1983 to set aside the aforesaid ex-parte decree. That order dt. 10/01/1984 was also passed by the same learned Civil Judge Shri H. M. Prajapati. ( 4 ) DURING the course of the final hearing of this First Appeal and the Appeal from Order the original plaintiff realised the infirmities in the litigation in the civil court and filed Special Civil Application No. 1071 of 1985 claiming the same reliefs prayed for in the suit. ( 5 ) THE original plaintiff has during the course of hearing also filed Civil Application No. 1306 of 1985 in F. A. No. 236 of 1984 for amendment of the plaint. In view of the amendment of the plaint sought by the plaintiff substantially and wholly changing the character and capacity of the plaintiff the decree passed in favour of the original plaintiff would be required to be set aside if the amendment is granted. However in view of the facts of this case the question of granting that amendment or remanding the matter to the Civil Court would not arise. ( 6 ) THE National Agricultural Co-operative Marketing Federation of India (NAFED) entered into a contract of export of HPS ground nuts with V10 Exportable an organisation of Ministry of Foreign Trade of the Government of U. S. S. R. H. P. S. ground-nuts 4256 MT was to be exported from Bedi Port and 1750 MT was to be exported from Porbandar Port. The vessel `romain-Rolland arrived at Bedi Port in the beginning of March 1980. The quantity of 4256 MT was loaded in the ship 1754 MT was loaded in hatch No. 3. After observing all the formalities for the export and after paying the export duty of Rs. 26 62 187. 5 ps. the vessel left Bedi Port on 21/03/1980 and arrived at Porbandar Port on 22/03/1980. At Porbandar Port after paying the export duty and observing the export formalities loaded the remaining cargo in the ship. A duty of Rs. 9 12 750 was also paid. On 26/03/1980 there was a fire in hatch No. 3 and the same was extinguished with Carbon Dioxide (C02) and sea water. On 29/03/1980 a part of the damaged cargo (about 200 MT) was discharged at porbandar. Then there was a labour strike at Porbandar Port and therefore the vessel was brought back to Bedi Port on 1/04/1980 and by 6/04/1980 the remaining damaged cargo was discharged at Bedi Port. As the goods were held to have been technically exported import duty was required to the paid and hence after paying the import duty the cargo was discharged at Bedi Port. ( 7 ) IT appears that the total insured value of the goods was U. S. dollars 53 41 254 and the amount of loss was valued at U. S. dollars 21 7. 52 as it appears from the letter of subrogation (ex. 10 in Spl. Darkhast No. 3/84- the record of which was also called for by us ). In consideration of the Insurance Company of the U. S. S. R. (Ingosstrakh Ltd.) paying to the foreign buyer the amount of the loss the Insurance Company was subrogated in place of the foreign buyer by the letter of subrogation dt. 8/05/1980/3rd May 1980. ( 8 ) THE plaintiff M/s. Pankaj Oil Cake Industries a partnership firm filed a refund application on 1st November 1980 before the Assistant Collector of Customs Jamnagar for full refund of Rs. 26 84 740 being the amount of export duty piad by NAFED. By a show cause notice dt. 22/05/1981 the plaintiff was called upon to show cause as to why the refund application should not be rejected. It appears that a similar application was also made to the Assistant Collector of Customs Porbandar for full refund of Rs. 26 84 740 being the amount of export duty piad by NAFED. By a show cause notice dt. 22/05/1981 the plaintiff was called upon to show cause as to why the refund application should not be rejected. It appears that a similar application was also made to the Assistant Collector of Customs Porbandar for full refund of Rs. 9 12 750 being the amount of the expert duty paid at Porbandar by NAFED. Both these refund applications were rejected by the respective Assistant Collector of Customs Porbandar and Jamnagar. An appeal was preferred to the Collector of question (Appeals) Bombay on 20/07/1981 By an order dt. 26/04/1982 the appeal was dismissed by the Collector et Customs (Appeals) Bombay. ( 9 ) THE statutory notice under section 80 of CPC was given by the plaintiff on 5/02/1983 (ex. 21) and Special Civil Suit No. 57 of 1983 was filed in Jamnagar Court on 24th July 1983. The plaintiff prayed for the full refund of Rs. 35 74 839. 5 (export duty and agricultural cess) and of Rs. 41 62. 26 (draw-back charges) together with interest at the rate of 18%. The trial court decreed the suit ex parte against the Union of India for full refund of the aforesaid amount with 10% interest p. a. (Rs 11 15 upto the date of the suits and further from the date of the suit till realisation. The refund which is claimed and granted is on the basis of damage to the entire cargo (not only of hatch no. 3 ). ( 10 ) THIS decree is challenged in First Appeal No. 236 of 1984 on several grounds. But two main grounds are:" (I) In view of the finality attached to the orders of the adjudicating appellate and revisional authorities under the self-contained comprehensive Code of the Customs Act the jurisdiction of the Civil Court is barred to entertain the suit for the refund of amounts of duties paid under the Customs Act; (ii) The plaintiff-firm is not entitled to the refund of these amounts and the plaintiff-firm could not have been granted the decree for the same. Some other contentions were also raised including absence of proof of extent of damaged cargo that could not be exported absence of statutory notice regarding the refund claim of draw back charges of Rs. 41 62. 26 ps. Some other contentions were also raised including absence of proof of extent of damaged cargo that could not be exported absence of statutory notice regarding the refund claim of draw back charges of Rs. 41 62. 26 ps. ( 11 ) THE second question is very serious. We take up that first. The suit notice (ex. 21) was given by the plaintiff firm in its (firms) capacity as well as in the capacity of transferee of actionable claim of NAFED through its partner Mr. P. K. Patel constituted attorney for Ingosstrakh Ltd. . In para 2 of the suit notice. the plaintiff claimed to be the transferee of actionable claim from NAFED. In para 3 partner P. K. Patel was also Said to be the constituted attorney of Ingosstrakh Ltd. In para 4 it was claimed that all the legal rights title and interest of NAFED and Ingosstrakh Ltd. legally vest in the plaintiff him and therefore the notice was being served in all the capacities. The Union of India was called upon to refund the sum of Rs. 35974. 937 ps. (the amount of export duty and agricultural cess) with interest at 18%. In para 21 reliefs sought were mentioned. No relief was claimed for refund of Rs. 41 62. 26 ps. In para 95 the name of the proposed plaintiff was mentioned as M/s. Pankaj Oil Cake Industries registered partnership firm in their firms capacity as well as transferee of actionable claim of the transferor NAFED and constituted attorney of Company Ingosstrakh Ltd. ( 12 ) IN the notice in the description of the title of the proposed suit all the three different capacities claimed by the plaintiff were mentioned. So also in para 25 regarding proposed plaintiff. ( 13 ) HOWEVER curiously and significantly the title of the plaint was changed merely to one capacity only of partnership firm. This by itself may be explained away as mere loose drafting not making much change in substance and therefore there is Civil Application No. 1306/85 (in First Appeal) filed by the original plaintiff for amendment of the plaint and of the cause title of the plaint. The suit is by the partnership firm only and the decree in the suit is also in favour of the partnership firm only. The suit is by the partnership firm only and the decree in the suit is also in favour of the partnership firm only. The significance of this material mission in the original plaint would become clearer as we proceed to narrate further facts. But at this stage it must be noted that the title itself in the suit notice (Ex. 21) shows all the capacities and para 25 of the suit notice also mentions the capacities of the proposed plaintiff. There was no legitimate reason to change he title while drafting the plaint especially when the averments were made in first para of the plaint regarding different capacities. If the suit was to be filed prosecuted and decree obtained in all these capacities the description of the plaintiff should have been in all these capacities and the court should have decided as to in which capacity the plaintiff if at all was entitled to a decree. Instead of doing that the plaintiff made a significant and material departure (why?) and sought and trial court granted a decree in favour of the plaintiff firm only in its capacity as a firm only. It is contended by the counsel for the appellant that the averments in paragraph 1 of the plaint were made to be used as a shield if and when any necessity arose; and to be conveniently forgotten if the decree was obtained for the firm. There is much force in this contention and we are inclined to accept the same. ( 14 ) THESE things become apparent. Ingrosstrakh Ltd.- the Insurance Company of U. S. S. R. had already filed a writ petition No. 945 of 1983 in the Bombay High Court on 11/04/1983 more than two months prior to the filing of the present suit. In that writ petition the present plaintiff is respondent No. 4. This fact is also not (disclosed to the trial court even though it was known to the plaintiff. At the hearing of all these matters the learned counsel for the original plaintiff stated that now that writ petition was no longer pending and was disposed of on the ground of lack of jurisdiction. However on further verifying the facts it was found from the appellants counsel that the petition is still pending in the Bombay High Court. At the hearing of all these matters the learned counsel for the original plaintiff stated that now that writ petition was no longer pending and was disposed of on the ground of lack of jurisdiction. However on further verifying the facts it was found from the appellants counsel that the petition is still pending in the Bombay High Court. The appellate order has been passed by the Collector of Customs (Appeals) Bombay and therefore prima facie the High Court of Bombay will have territorial jurisdiction to entertain and decide the petition. Be that as it may suffice it to say that the petition is still pending. ( 15 ) IN the suit summons was ordered to be issued to the only defendant- Union of India by registered post. Even though the refund was refused by the Assistant Collectors of Customs of Jamnagar and Porbandar and by the Appellate Collector. Bombay they were not made parties to the suit and even summons to the Union of India was not sought to be served through any of its customs officers but it was sought to be served through the Secretary Department of Revenue New Delhi. It appears that the summons sent to the Union of India was not accepted because papers not complete. This is the endorsement on second page of copy of the plaint sent to the Union of India. The trial court therefore directed on 9/08/1983 to issue fresh summons to the defendant. The same was served at Delhi on 22/08/1983 directing the defendant to appear in Jamnagar court on 24/08/1983 On that day the trial court adjourned the matter to 1/09/1983 as the service was not returned. On 1/09/1983 the trial court passed the order on the plaint as follows. "defendant is not present when called out in open Court. Summons has been duly served. Hence suit is ordered to proceed ex-parte against defendant"on 17/09/1983 the trial court raised issues at ex. 7. ( 16 ) ON 21/09/1983 the plaintiff with application ex. 8 produced a list of documents ex. 9 with 7 documents and at ex. 10 the deposition of P. K. Patel a partner of the plaintiff firm is recorded in Gujarati running into 10 pages. As per rojama of that day arguments were also heard and the judgment was pronounced in open court on that very day. Original type written judgment runs into 17 pages. 9 with 7 documents and at ex. 10 the deposition of P. K. Patel a partner of the plaintiff firm is recorded in Gujarati running into 10 pages. As per rojama of that day arguments were also heard and the judgment was pronounced in open court on that very day. Original type written judgment runs into 17 pages. Thus on the same day the learned trial Judge received documentary evidence recorded the deposition running into 10 pages heard the arguments and wrote down or dictated and got typed the judgment running into 17 pages on the same day and pronounced and signed it. The trial court apparently did not feel any necessity to decide about the jurisdiction of the civil court in such matters or the capacity of the plaintiff in which the plaintiff if at all was entitled to any relief even when he was dealing with suit of a very large stake and passing a decree of nearly 50 lacs. ( 17 ) ON 10/11/1983 the Union of India filed Civil Misc. Application No. 61/83 for setting aside the ex-parte decree. The same learned Judge Shri H. M. Prajapati by his judgment and order dt. 10/01/1984 rejected that application. Against the judgment and decree there is regular Civil First Appeal (i. e. F. A. No. 236/84) and against the order refusing to set aside the decree there is Appeal from) Order (i. e. A. O No. 14/84 ). ( 18 ) THE Appeal from Order was admitted on 25/01/1984 and on Civil Application No. 333/84 rule and ad-interim relief in terms of para 7b was granted on the same day thereby the execution of the decree in the suit was stayed. . This stay of execution is not expressly modified or vacated. However this Civil Application was directed to be placed before the Division Bench for hearing with Civil Application for stay in the First Appeal. F. A. No. 236/84 was admitted on 28/02/1984 and the hearing was ordered to the expedited. In C. A. No. 923/84 rule and ad-interim stay in terms of para 7a was granted staying the execution of the decree. ( 19 ) MEANWHILE Special Darkhast No. 3/84 was filed by the plaintiff firm in its capacity of firm only and the pretence of all other capacities was given a go by. In C. A. No. 923/84 rule and ad-interim stay in terms of para 7a was granted staying the execution of the decree. ( 19 ) MEANWHILE Special Darkhast No. 3/84 was filed by the plaintiff firm in its capacity of firm only and the pretence of all other capacities was given a go by. Unlike the plaint wherein some averments were made regarding other capacities and signing of the plaint and verification in other capacities the Darkhast was filed only in one capacity; there was no mention or description of any other capacity and it has signed also in one capacity of the partnership firm by a partner in one capacity. As pointed out earlier on 25th January 4984 in C. A. No. 333/84 in A. O. No. 14/84 the High Court had already granted stay of execution of the decree. The same also appears in the proceedings of Darkhast No. 3/84 at ex. 7/1. ( 20 ) ON 24/04/1984 C. A. No. 923/84 in F. A. No. 236/84 was heard by the Division Bench (Coram N. H. Bhatt M. B. Shah JJ.) and following order was passed:"heard the learned Advocates. Mr. A. H. Mehta submitted that as per the longstanding practice the execution of a money decree is not stayeed. Mr. A. H. Mehta is right hut in the facts and circumstances of the case particularly the circumstance that the question of jurisdiction of the Civil Court which has passed the ex-parte decree is seriously arising in this appeal we are inclined to strike a sort of a departure from that general rule and stay the execution of the decree on condition that 1/4th of the decretal amount is deposited with the trial Court by the applicant with liberty to the opponent to withdraw the same on furnishing security to the satisfaction of the trial Court. The amount to be so deposited within four weeks from today. The First Appeal is expedited and is ordered to be heard on 21-8-1954 A. O. No. 14 of 1984 which is also arising out of the very matter is directed to be heard along with this First Appeal". Rule in the Civil Application is accordingly partly made - absolute with no order as to costs. The time of four weeks was subsequently extended and ultimately the 1/4th of the decretal amount i. e. Rs. 14 28 212. 09 ps. Rule in the Civil Application is accordingly partly made - absolute with no order as to costs. The time of four weeks was subsequently extended and ultimately the 1/4th of the decretal amount i. e. Rs. 14 28 212. 09 ps. was deposited with the trial Court. It appears that the said amount was deposited by a government cheque on 5/07/1984 and even though the title of that application of depositing mentions Special Civil Suit No. 57/83 and Special Darkhast No. 5184 that application is not placed in the Darkhast but is kept separately (why?) in some miscellaneous papers. On that application the trial Court has passed an order directing the Nazir to accept the same and issue receipt of the cheque to the District Government Pleader. The endorsement of the Nazir dt. 20/07/1984 shows that the amount of the cheque is realised and credited on that day. This letter has been forwarded by the learned District Judge Jamnagar as the same was called for by us. . ( 21 ) ON the same day i. e. 20/07/1984. the plaintiffs advocate made an application for withdrawing that amount. However this application and further papers regarding withdrawal are not found in the papers of Special Darkhast No. 3/84 but they are separately tagged under Special Darkhast No. 4/84 (why? ). This type of written application for withdrawal of about mentions Special Darkhast No. 4/84. The type written figure 4 seems to be lover written over the typed written figure 3. Special Darkhast No. 4/84 is of entirely different party M/s. Harilal Jamnadas and Bros. and that file is also a separate file. The papers of this Special Darkhast No. 4/84 are kept separate from Special Darkhast No. 3/84 as well as from No. 4/84 of M/s. Harilal Jamnadas and Bros. The significance of this separate number and separate file will also become clear subsequently. On the same day i. e. 20/07/1984 the Nazir reported that the amount has been deposited and on the same day the learned trial Judge heard the plaintiff only. The plaintiff was directed to furnish security of Rs. 15 lacs as per the order of the High Court at Ex. 12 and on furnishing security as aforesaid the deposited amount was directed to be paid to the plaintiff by a cross-cheque in favour of the plaintiff. The plaintiff was directed to furnish security of Rs. 15 lacs as per the order of the High Court at Ex. 12 and on furnishing security as aforesaid the deposited amount was directed to be paid to the plaintiff by a cross-cheque in favour of the plaintiff. On the next day i. e. 21/07/1984 5 partners of the plaintiff firm gave the personal security of Rs. 3 lacs each along with solvency certificates for sum of Rs. 3 lacs issued by the Additional Magistrate Rajkot on 18/07/1984. Each of the five partners has given surety bond whereby the has voluntarily become surety land bound himself that the plaintiff shall produce and place at the disposal of the Court when required the amount of Rs. 3 lacs as may be ordered by the High Court in F. A. No. 236184. Each of the five security bonds dt. 21/07/1984 were accepted by the trial Court on the same day. The said Ave partners are Keshavlal Gordhanbhai Patel Govindjibhai Khimjibhai Patel Rajivkumar Valjibhai Patel Pravinkumar Keshavlal Patel and Valji Gordhan Patel. On the same day the sum of Rs. 14 28 212 has been paid to the plaintiff firm by a cheque. ( 22 ) WE had called for the papers of Special Darkhast No. 3/84 to see as to what security was furnished. But when the papers of Special Darkhast No. 3 were received by us a most revealing thing came to light and seemingly innocuous things became a matter of great suspicion and a suspected fraud. On 31/03/1984 the real claimant (if entitled at all) came on the scene in Special Darkhast No. 3/84 M/s. Ingoostrakh Ltd.-Insurance Company of U. S. S. R. made an application Ex. 9 in Special Darkhast No. 3/84. That application is affirmed at Bombay on 18/02/1984. It was filed in the executing court on 31/03/1984 and the learned advocate for the plaintiff received the copy hereof and made an endorsement be having received the copy on 31/03/1984 In that application it was claimed that they were the insurer of the cargo sold by NAFED to VIO Exportable an organisation of Ministry of Foreign Trade Government of U. S. S. R. and the sellers NAFED had recovered from the foreign buyers the full value of the goods including export duty paid thereon. Thereafter a claim was made in respect of the damage caused to the cargo and the insurer paid the amounts payable under the policy and obtained a letter of subrogation whereby the buyers subrogated all their rights in respect of the said consignment to the insurer. It was also stated that by a letter dt. 16/10/1982 the said vendor NAFED had transferred its rights claim and title in respect of the refund of the export duty in respect of the said consignment to the insurer. It is further averted that:"the present suit this been filed on the incorrect basis that the plaintiffs herein are entitled to receive the refund of export duty as transferees of the actionable claim of the said NAFED This demand is incorrect to the knowledge of the plaintiffs since the assignment or the claim is expressly in favour of the applicants. The applicants say and submit that it is the applicants alone who are entitled to claim and recover the export duty and in fact the applicants have filed a Writ Petition being Writ Petition No 945 of 1983 in the High Court of Judicature at Bombay for appropriate orders The said writ petition has been admitted. The plaintiffs herein are the 4th respondents in the petition. The applicants crave leave to refer to rely upon the papers and proceedings in the said Writ Petition when produced. it was also submitted that the power of attorney given by the insurer to the plaintiff merely constituted the plaintiffs as agents of the insurer and the plaintiffs had no independent right title or interest in respect of the amounts claimed in the suit. it was also submitted that the power of attorney given by the insurer to the plaintiff merely constituted the plaintiffs as agents of the insurer and the plaintiffs had no independent right title or interest in respect of the amounts claimed in the suit. In para 4 following submission and prayers were made:"4 In view of the incorrect statements made by the plaintiffs in the plaint it has now become necessary for the applicants to intervene in the proceedings and it is absolutely necessary and in the interest of justice and in order to avoid the abuse of the process of this Honble court that this Honble court (a) join the applicants as plaintiffs in the proceedings and tranpose the present plaintiffs as pro-forma defendants; or alternatively (b) pass appropriate orders joining the applicants as co-plaintiff with the present plaintiffs with directions that the decree shall be executable only at the instance of the applicants and that the amounts payable thereunder Should be ordered to be paid over to the applicantsan interim stay was also prayed. The Court merely passed an order fix for hearing. ( 23 ) EVEN though the plaintiffs very well knew since 31/03/1984 that their principal had made this application and virtually withdrawn the authority the plaintiffs did not disclose this fact to the High Court on 28/04/1984 when it got the interim stay vacated partly by getting a direction for deposit of 1/4th of the decretal amount and permitting withdrawal of the same by the plaintiffs. Not only that the papers of deposit (which specifically mentions Special Darkhast No. 3/84) and the papers of withdrawal (which curiously mentions Special Darkhast No. 4/84) were not allowed to be brought on the record of Special Darkhast No. 3/84. If those papers were placed in the proper proceedings (being Special Darkhast No. 3/84) where the application and the objection of Ingosstrakh Ltd. were kept for hearing the present plaintiff would not have been allowed to withdraw that amount without further hearing and without any notice or knowledge to Ingosstrakh Ltd. and to the Government. The amount has been withdrawn by the present plaintiff on mere furnishing personal securities of partners of the plaintiff firm only. How such personal securities could satisfy the trial Court without hearing the defendant for whose protection such securities were taken also passes beyond comprehension. The amount has been withdrawn by the present plaintiff on mere furnishing personal securities of partners of the plaintiff firm only. How such personal securities could satisfy the trial Court without hearing the defendant for whose protection such securities were taken also passes beyond comprehension. Merely because solvency certificates of the partners were produced that would not be a ground at all for no hearing the defendants for whose protection such securities were taken. ( 24 ) AFTER withdrawing the amounts on 21/07/1984 on 24/08/1984 Special Darkhast is quietly withdrawn with liberty to file fresh Darkhast. Here again there is no reference to any deposit withdrawal or part satisfaction of the decree. Thus the objection and application of the Insurance Company of U. S. S. R. (Ex. 9) remained undecided and practically lapsed. The plaintiff did not point out that the was an objection to their recovering that amount either to the High Court when they got the order on 24/04/1984 or to the executing court on 20th/ 21/07/1984 when they sought withdrawal of the amount and in fact withdrew the amount. These things do not appear to be innocuous at all ( 25 ) ON the second question of the right) of plaintiff to claim the amount to continue the discussion from paras 11 to 14. The plaintiff is a partnership him as shown in the title of the plaint and there is no other capacity mentioned there. However in the first para of the plaint it is averred that the plaintiff is also the transferee of the actionable claim of NAFED; Mr. P K. Patel one of the partners of the firm is also constituted attorney of Ingrosstrakh Ltd. Be it noted Mr. P. K. Patel is not the plaintiff. The Plaintiff is the partnership firm and the firm is not the constituted attorney. Moverover the insurer (principal) had already filed Writ Petition No. 945/83 on 11/04/1983 in the Bombay High Court two months prior to the filing of the present suit. Therefore the claim on behalf of the insurer-Insurance Company was not at all before the trial Court. The plaintiff as a firm had no right whatsoever in itself wand by itself. It had not paid the duty nor borne the duty. The duty was paid by NAFED. The plaintiff claimed to be the transferee of actionable claim of NAFED. In the deposition (Ex. The plaintiff as a firm had no right whatsoever in itself wand by itself. It had not paid the duty nor borne the duty. The duty was paid by NAFED. The plaintiff claimed to be the transferee of actionable claim of NAFED. In the deposition (Ex. 23) P. K. Patel stated on oath that he was the transferee of the claim of NAFED and the letter is produced at Ex. 12 (It is also again produced at Ex. 23 ). That letter shows that neither the plaintiff-firm not the deponent-partner is to transferee. The transferee is Wi/s. Ingosstrakh Ltd. c/o. M/. Pankaj Oil Cake Industries. NAFED was careful not to give any transfer to the plaintiff firm. It had given the transfer only to the Insurance Company of U. S. S. R. Yet the deponent partner had stated on oath that he was the transferee of the claim of NAFED and on that basis persuaded the Trial Court to pass a decree in favour of the plaintiff partnership firm. Of course the trial Court did not think necessary to decide (what was the hurry?) as to in which capacity the plaintiff was entitled to the decree. hut the plaintiff has obtained and has been granted a decree in favour of the plaintiff as described in the title of the plaint which is merely and simply a partnership firm and not on behalf of others or in any other capacity. From the letter ex. 12 (also ex. 93) it is clear that the plaintiff firm is not a transferee of NAFED. The plaintiff firm by itself is no entitled to any relief whatsoever and no sum is due to it. The plaintiff firm is not the constituted attorney of the Insurance. Company and therefore the suit of the plaintiff is not tenable at all and the decree could not have been passed in favour of the plaintiff in any case and therefore the judgement and decree of the trial court in Special Civil Suit No. 57/83 is required to be reversed and set aside. ( 26 ) REALISING this difficulty the plaintiff has come out with C. A. No. 1306 whereby it wants the title of the plaint to be amended so as to read as under:"m/s. Pankaj Oil Cake Industries. a registered partnership firm having its principal office at Morvi Road Rajkot. ( 26 ) REALISING this difficulty the plaintiff has come out with C. A. No. 1306 whereby it wants the title of the plaint to be amended so as to read as under:"m/s. Pankaj Oil Cake Industries. a registered partnership firm having its principal office at Morvi Road Rajkot. for itself and its partners and as constituted attorney of Ingosstrakh Ltd. a company constituted under the Law of U. S. S. R. Moscow U. S. S. R. through its constituted attorney the firm abovenamed and Shri P. K. Patel a partner of the plaintiff abovenamed firm plaintiffs". The plaintiff also wants to add paragraphs 4a 4 and 4c in the plaint so as to incorporate the averments that under an agreement dt. 9/05/1980 (which is at page 9 of the C. A.) damaged goods were purchased by the plaintiff for a sum of Rs. 45 50 0 Para 6 of the agreement provided that In case an) import duty is levied on the sale of cargo to the buyers by the Customs authorities at Porbandar and Bedi Bunder the same would be paid and born by the buyers. In case the said amount paid is to be contested in a Court of Law or before the Customs Adjudicating authorities full cooperation will be given by the sellers. who will act jointly with the Buyers herein as per the advice and guidance given by the Buyers Advocate. Thus the only right conferred on the plaintiff by this agreement was to claim refund of the import duty only and there was no provision in this agreement entitling the plaintiff to claim refund of the export duty and agricultural cess paid by NAFED. By para 7 of the agreement it was made clear that any draw back which may be obtained from the customs authorities will be for the benefit of the sellers (Insurance Company ). ( 27 ) BY another agreement dt. 9/05/1980. which was not produced at all in the suit the plaintiff firm was authorised to take proceedings for recovery of the amount of export duty paid on the goods which were subsequently damaged. A copy of that agreement is now sought to be produced along with the Civil Application at page 6. ( 27 ) BY another agreement dt. 9/05/1980. which was not produced at all in the suit the plaintiff firm was authorised to take proceedings for recovery of the amount of export duty paid on the goods which were subsequently damaged. A copy of that agreement is now sought to be produced along with the Civil Application at page 6. This agreement shows that if any application is to be preferred for obtaining refund of the export duty the sellers and the buyers will actively co-operate with each other and both will sign execute and submit application deeds documents papers affidavits appeals revisions etc. for effectively carrying out the proceedings for applying for refund of such export duty and the matter of refund would he handled by buyers advocate in co-operation with sellers advocate. In the present case not only no co-operation is sought from the sellers advocates (much less joint action) but they are kept in dark and the sellers had to make an application that the buyers have by making incorrect averments obtained 3 decree in their favour in their individual firms capacity totally inconsistent with their fiduciary capacity on behalf: of the sellers and in breach of the trust reposed in the plaintiffs partner by the sellers. This agreement. if at all could have been the basis of the claim of the plaintiff but this document was not made the basis of the suit and in fact it was suppressed from the trial court. perhaps the reason was that the agreement further provided that if the said refund is received the same will be shared by the sellers and the buyers herein in the ratio of 64% and 40% respectively. The buyers (plaintiffs) were to bear the expenses of all legal proceedings upto the extent of one lakh rupees. The agreement was not produced in the trial court perhaps with a view to avoid an argument that this agreement would be in the nature of champerty and maintenance and against public. policy and would therefore be void. The buyers (plaintiffs) were to bear the expenses of all legal proceedings upto the extent of one lakh rupees. The agreement was not produced in the trial court perhaps with a view to avoid an argument that this agreement would be in the nature of champerty and maintenance and against public. policy and would therefore be void. At the hearing of those matters it was inquired from the plaintiffs whether they had remitted the amount withdrawn by them to their principals or any part of it and whether they had informed their principals that they had recovered and realised such a large sum of 14 lakhs and odd on their behalf Nothing was shown to us that the principals were informed. It was admitted that no amount has been remitted to the principals from the amount withdrawn by the plaintiffs. Thus the plaintiffs even though they are themselves not entitled to these amounts have obtained the decree and retained the same. This is not only clearly illegal but it is most unfair and unreasonable coupled with the fact that the course taken and the proceedings conducted by the plaintiffs in this case show that the intention of the plaintiff was far from honest and bonafide. From the record it appears that the plaintiff have knowingly made wrongful gain with intention to deprive and defraud rightful claimants and have knowingly made a false claim for a huge sum not due to them and to which they were not entitled. Obviously the plaintiffs have obtained the decree in their individual capacity by fraudulent means. ( 28 ) IN view of our findings that the suit by the firm was not tenable at all the matter ought to have ended here. But in view of the amendment application it would be necessary to consider further questions ordinary amendments of pleadings would not be refused especially when there are some corresponding averments in the original plaint itself. But having regard to the fact that the real claimant has virtually withdrawn the authority and had already preferred the same claim before the Bombay High Court even prior to the filing of the suit the amendment does not deserve (to be granted. But having regard to the fact that the real claimant has virtually withdrawn the authority and had already preferred the same claim before the Bombay High Court even prior to the filing of the suit the amendment does not deserve (to be granted. ( 29 ) MOREOVER no useful purpose would be served by granting the amendment because in our view Civil Court would not have jurisdiction to entertain this kind of a suit for refund of duties paid under Customs Act. The payment of import and export duty is under the Customs Act and the question of refund is also under the Customs Act. The Customs Act is a self-contained comprehensive Code. It provides for elaborate machinery to deal with these questions. It provides for reasonable opportunity and hearing in compliance with principles of natural justice. If there is any defect in such procedure or if there is any error in the order or proceedings of the adjudicating authority there are remedies and provision for appeal and revision in the Act itself. The orders passed under the Customs Act have a finality. Therefore jurisdiction of Civil Court to entertain such claims or suits is clearly barred. ( 30 ) THIS question has been decided by the Supreme Court in the case of Union of India v. A. V. Narasimhalu 1969 (2) SCC 658 . It was also a claim for refund of custom duty on reels of newsprints of less than 15 width. Madras High Court had already held in one case that newsprints of width less than 15 was exempt from duty. On that basis another party had made a claim of refund in the same count before the customs authorities. That claim was dismissed by the customs authorities and confirmed in appeal and revision on the ground that the claim was not made within three months from the date of the demand and was therefore barred under sec. 40 of the Sea Customs Act 1878 There. after the party filed a civil suit which was decreed by the trial Court but negatived by the First Appellate Court on the ground that Civil Court had no jurisdiction to try the suit. The appellate court relied on the judgment of the Privy Council in the case of Secretary of State for India v. Mask and Co. after the party filed a civil suit which was decreed by the trial Court but negatived by the First Appellate Court on the ground that Civil Court had no jurisdiction to try the suit. The appellate court relied on the judgment of the Privy Council in the case of Secretary of State for India v. Mask and Co. 67 Indian Appeals 222 In Second Appeal the Madras High Court reversed the finding and decreed the suit. However the Supreme Court held that the Civil Court had no jurisdiction to entertain and decide the suit. The High Court had held that the Customs Collector had without jurisdiction levied duty upon the goods which were not liable to duty and duty and and collected the same under the colour of statutory power. The High Court further held that civil suit would be maintainable on the ground that the right to be enforced would be a common law right to property which was being interfered with and therefore the remedy under the common law in a Civil Court would be maintainable as the levy of customs duty was beyond the jurisdiction of the authority. However the Supreme Court reversed this finding of the High Court by observing as follows in para 8:"but an erroneous decision of the customs authority cannot be said to be reached without jurisdiction merely because it may be shown in come collateral proceeding to be wrong. Normally an action of an administrative authority interfering with the right to property may be challenged by resort to a civil court. Yet in the ease of a right which depends upon a statute the jurisdiction of the civil court to grant relief may by express provision or by clear implication of the statue be excluded Where a statute re-enacts a right or liability existing at common law. and the statute provides a special forum of remedy exclusion of the jurisdiction of the Civil Court to grant relief in the absence of an express provision will riot be readily inferred. Where however a statute creates a new right or Liability and it provides complete machinery for obtaining redress against erroneous exercise of authority jurisdiction of the civil court to grant relief is barred. Where however a statute creates a new right or Liability and it provides complete machinery for obtaining redress against erroneous exercise of authority jurisdiction of the civil court to grant relief is barred. Liability to pay a duty of customs is not a common law liability it arises by virtue of the Sea Customs Act in respect of any grievance arising in consequence of enforcement of that liability machinery has been provided by the Act. Having regard to the complicated nature of the questions which arise in the determination of liability to pay duty of customs the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals. An appeal lies against the order of the Assistant Collector of Customs against an order imposing duty as well as an order refusing to refund duty and the grievance may be carried to the Central Board of Revenue. In our judgment the jurisdiction of the Civil court is by clear implication of the statute excluded". Even though this was a case under S. 188 and 189 of the Sea Customs Act 1878 it is directly applicable to sec. 128 and 129 of the Customs Act 1962 because the provisions and scheme are identical. The Supreme Court had also referred to the Privy Council case of Secretary of State for India v. Mask and Co. (supra) wherein it was observed that adjudication as to confiscations increased rates of duty or penalties made under the power conferred by sec. 182 were decisions or orders within the meaning of sec. 188 and that the decision of the Collector under sec. 188 was final and excluded the jurisdiction of the Civil Court. The Supreme Court also made it clear that not only the orders in appeal hut all orders under Sea Customs Act were final and a civil suit will not lie even against the decisions or order of the original authority. Dhulabhais case AIR 1969 SC 73 was also referred to and followed. As early as in 1959 in N. P. Ponnuswami v. The Returning officer AIR 1952 SC 64 the Supreme Court has observed that it is now well recognised that where a right or liability is created lay a statute which gives a special remedy enforcing it the remedy provided by that statute only must be availed of. As early as in 1959 in N. P. Ponnuswami v. The Returning officer AIR 1952 SC 64 the Supreme Court has observed that it is now well recognised that where a right or liability is created lay a statute which gives a special remedy enforcing it the remedy provided by that statute only must be availed of. In the present case as the duties have been collected under the Customs Act and if there is any illegal or erroneous collection of such amounts the remedy by way of application for refund is also provided for under the said Act. If there is any error in the order of granting or refusing the refund further remedies by way of appeal and revision are also provided and the decision under the Act is final. That would clearly bar the jurisdiction of the Civil Court. In the instant case it cannot he said that the officers of the Customs have acted mala fide or that the officers of the Customs had no jurisdiction whatsoever to levy the export duty. In this view of the matter the Civil Court had no jurisdiction to entertain the suit and therefore also the suit is required to be dismissed as being not maintainable. Since the Civil Court would not have jurisdiction to entertain the suit even with the amended plaint no useful purpose: would be served by granting the amendment or by remanding the matter to the trial Court after amendment. Moreover. even on merits we are of the opinion that the amendment changes the entire nature of the suit and proceeding The character of the plaintiffs is sought to be changed. This will change the nature of the litigation. This is likely to cause serious prejudice to the defendant-Union of India. Be it noted that the defendant is already facing one litigation (writ petition) in Bombay High Court in respect of this very claim and subject-matter. If the amendment is allowed it would lead to multiplicity of proceedings and cause irreparable damage to the defendant. Therefore also Civil Application No. 1306/85 deserves to be dismissed and is hereby dismissed with costs. Be it noted that the defendant is already facing one litigation (writ petition) in Bombay High Court in respect of this very claim and subject-matter. If the amendment is allowed it would lead to multiplicity of proceedings and cause irreparable damage to the defendant. Therefore also Civil Application No. 1306/85 deserves to be dismissed and is hereby dismissed with costs. ( 31 ) F. A. No. 236/84 is also dismissed with costs throughout because the plaintiffs have no legitimate claim and the Civil Court has no jurisdiction to entertain suit of this nature for the refund of the import and export duty paid under the Customs Act and in any case the plaintiffs are not entitled to the refunds amount. ( 32 ) AS regards A. O. No. 14/84 it may now academic to decide that appeal in view of the fact that the judgment and decree is set aside in the First Appeal and the suit is dismissed. However in view of the peculiar facts of this case it is necessary to deal with that also. Appeal from Order No 14 of 1984. ( 33 ) SOME facts relevant to this Appeal from Order are already staled it paras 15 to 18 above. It is contended that the trial Court has committed an error in holding that the application was filed beyond time and that the trial Court ought to have considered that the application was Sled within time from the date of knowledge of the decree. As stated in the affidavit dated 9/12/1983 filed by Shri P. S. Siddhu Secretary to the Department of Revenue the Government came to know that the decree has been passed only on 29/10/1983 Thereafter the application was filed on 10/11/1983 and therefore as per the provisions of Article 123 of the Limitation Act the application to set aside the decree passed ex-parte should have been considered with in time. It was further argued that in this case the summons was not duly served and therefore the time should have been considered from the date of knowledge of the decree. The trial Court rejected this contention on the ground that the first summons i. e. summons issued on 4/07/1983 can be said to have been duly served and as the application was beyond 30 days of the date of the decree it was barred by limitation. The trial Court rejected this contention on the ground that the first summons i. e. summons issued on 4/07/1983 can be said to have been duly served and as the application was beyond 30 days of the date of the decree it was barred by limitation. ( 34 ) THE suit was filed on 24/06/1983 The Court ordered to issue summons by registered post A. D. on 30/06/1983 making the summons returnable on 29/07/1983 It appears that summons by registered post-was salt to the addressee but the same has been returned with an endorsement not accepted on the ground that the summons was not accompanied by complete set of papers. On 29/07/1983 when the matter was called out before the Court the Court ordered to issue fresh summons returnable on 24/08/1983 This order was passed on 9/08/1983 This summons was served upon the defendant on 22/08/1983 When the matter was called out on 24/08/1983 the matter had to be adjourned because the summons was not returned either served or unserved. The matter was adjourned to 1/09/1983 On that date the Court passed an order on the plaint to proceed ex-parte against the defendant-Union of India and ultimately passed an ex-parte decree. On 21st evidence was recorded. Only partner of the plaintiff firm was examined and he produced certain documents and on the same day the Court passed judgment and decree. ( 35 ) THE trial Court has rejected the contention of the Union of India that the summons was not duly served on the ground that the earlier summons dated 4/07/1983 was returned by the addressee with an endorsement not accepted. On this basis the trial Court came to the conclusion that there was service of the summons dt. 4/07/1983. Now if one looks at the proceedings of the case dated 29/07/1983 it is clear that the trial Court itself considered that this service was not a proper service and therefore the Court ordered that fresh summons be issued on 9/08/1983 This order was passed because the Court rightly thought that the service of the summons was not due proper and valid. Even so strangely enough the trial Court for rejecting the application held that the earlier service on 4/07/1983 was a valid service; On this basis the trial Court calculated the limitation from the date of ex-parte decree for the purpose of filing the application. This is clearly erroneous. Even so strangely enough the trial Court for rejecting the application held that the earlier service on 4/07/1983 was a valid service; On this basis the trial Court calculated the limitation from the date of ex-parte decree for the purpose of filing the application. This is clearly erroneous. The trial Court itself during the proceedings of the case has not considered the earlier service of summons dated July 4 1983 as proper service. Thereafter it was not open to the trial Court to rely on that earlier service and come to the conclusion that the earlier service of summons was a proper service ( 36 ) AS far as the service of summons on 12/08/1983 is concerned it is obvious that the date of hearing was fixed on 24/08/1983 This means that only two days before the date of hearing at Jamnagar the service was effected at New Delhi. At this stage one may refer to certain provisions of the C. P. Code in this connection Order V Rule 6 inter alia enjoins a duty upon the Court to fix the date of hearing in such a way that the defendant may have sufficient time to enable him to appear and answer on such day. Obviously this provision has not been complied with in this case. Reference may be made to Order V Rule 9. In cases where the defendant resides within the jurisdiction of the Court or has an agent resident within the jurisdiction of the Court the service of the summons is to be effected as provided in this rule. In the instant case the service could have been affected on the Assistant Collector of Customs Jamnagar whose order was under challenge. The service could also have been effected on the Government Pleader. A judicial notice of the fact that in all Central Government matters the District Government Pleader usually and invariably appears should have been taken by the Court and the Government Pleader should have been informed to take care of the matter. If one refers to the provisions of O. IX R. 6 it becomes abundantly clear that the trial Court has not followed the mandate given by the Legislature. If one refers to the provisions of O. IX R. 6 it becomes abundantly clear that the trial Court has not followed the mandate given by the Legislature. The relevant provision of O. IX R. 6 reads as follows:"6 (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then x x x x x x x x when summons served but not in due time- (c) if it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons the court shall postpone the hearing of the suit to a future day to be fixed by the court and shall direct notice of such day to be given to the defendant x x x x x x x xin this case the summons was served on 22/08/1983 to appear in Jamnagar court on 24/08/1983. It was not served in sufficient time. Therefore it was incumbent upon the Court to postpone the hearing of the suit to a future date and to direct notice to be issued giving intimation to the defendant regarding the next date of hearing. The trial Court has obviously failed to do this. ( 37 ) THE trial Court also ought to have taken into consideration the provisions of O. XXVII and particularly the provisions of Rules 4 5 5 and 8b. As per the provisions of Rule 4 of the Government Pleader is to be considered the agent of the Government for the purpose of receiving processes against the Government. In this case the Court could have and should have called the District Government Pleader or the Assistant Government Pleader and asked him to receive the summons on behalf of the Government or at any rate the Court should have asked him to see that proper arrangements are made to see that some lone; appears on behalf of the Government. As per the provisions of Rule 5 it was the duty of the trial Court to fix the day for the Government to answer to plaint in such a way that reasonable time for necessary communication is left at the disposal of the Government. As per the provisions of Rule 5 it was the duty of the trial Court to fix the day for the Government to answer to plaint in such a way that reasonable time for necessary communication is left at the disposal of the Government. In the instant case the trial Court was in such a hot haste that within a period of less than one month from the date of service of summons ( 22/08/1983 the suit with the mistake of nearly 50 lacs has been disposed of i. e. on 21/09/1983 The trial Court ought to have taken into consideration this provision (O. XXVII R. 5 ). It ought not to have passed order to proceed ex-parte in (the suit on 1/09/1983 There was no such compelling need to pass an order to proceed ex-parte on 1/09/1983 There is nothing to show that the trial Court made any attempt to call the Government Pleader or to call any local officer from the Customs and Central Excise Office at Jamnagar. This undue haste tin (passing ex-parte decree of a huge amount of nearly 50 lacs together with other circumstances of the case leads one to many adverse and unpalatable inferences against the plaintiff. advocates representing the plaintiff and all concerned indluding the trial Court. Under O. 27 R. 5b the trial Court ought to have seen that in suits against the Government it is the duty of the Court to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. For this purpose the trial Court could have and should have called some one from the office of the Customs Department at Jamnagar. It was very clear from the plaint itself that the order was passed by the Assistant Collector of Customs Jamnagar. It was also clear from the averments made in the plaint that the officers of the Government who would receive the export duty and import duty were having their office at Jamnagar. The entire transaction took place within the jurisdiction of the Assistant Collectors of Customs Jamnagar and Porbandar. In the facts and circumstances of the case it was incumbent upon the Court to call this officer and make an attempt to understand and thereafter if possible to settle the dispute. The entire transaction took place within the jurisdiction of the Assistant Collectors of Customs Jamnagar and Porbandar. In the facts and circumstances of the case it was incumbent upon the Court to call this officer and make an attempt to understand and thereafter if possible to settle the dispute. The provisions or Rule 8b of Order XXVII really indicate that for the purposes of the provisions of O. XXVII the Government Pleader appointed in the District could have been asked to accept the service on behalf of the Central Government. No such attempt appears to have been made by the Court. At any rate the Government Pleader could have been at least informed about the suit of a stake nearly of fifty lacs of rupees having been instituted against the Central Government and he could have been asked to make appropriate arrangements. ( 38 ) IN the suits against the State Government as well as against the Central Government many a time plaintiffs file suits joining the Government alone as the defendant and such plaintiff further states that the summons of the suit be served upon the Chief Secretary or the Secretary concerned of the particular department. If the suit is against the State Government. The office of the Secretary concerned would be at Gandhinagar and if the suit is against the Central Government the office of the Secretary concerned will be at New Delhi. In the very nature of the things and having regard to the huge monolithic and impersonal organisation of the Government it would be very difficult for the officer who receives the summons to locate the proper officer the would be in charge of the subject-matter of the suit or proceeding in question. That is the reason why the Legislature has made specific provision of O. XXVII Rule S and has enjoined a duty upon the courts to see that the Government gets reasonable time for necessary communication though the proper channel. Whenever such suits are filed the courts should insist and direct the plaintiffs to join the officer concerned whose order is challenged or who is likely to take action for and on behalf of the Government. Whenever such officer is not joined the Court should be reluctant to proceed further with the suit or proceeding against the Government unless proper representation is made on behalf of the Government. Whenever such officer is not joined the Court should be reluctant to proceed further with the suit or proceeding against the Government unless proper representation is made on behalf of the Government. In all such cases as far as possible the Court should not proceed further at all with the proceedings against the Government unless representation is made through proper officer or through the Government Pleader. If this is no done it would be very easy for dishonest people to snatch a decree against the Government by keeping the Government and all other concerned in dark. The Court cannot become a party to such a fraud. To avoid such contingencies the provision has been made in the Civil Procedure Code which has been referred to hereinabove. It was the duty of the trial Court to have looked at the aforesaid provisions and it ought not to have allowed the plaintiff to snatch a decree by putting its imprimature on the same. In the instant case it cannot be said that the summons was duly served. As Elated hereinabove if one looks-at the provision of Order IX Rule 6 it was incumbent upon the trial court to issue fresh notice. Moreover having regard to all the facts and circumstances of the case which have been narrated hereinabove in details it is very clear that the plaintiff has tried to snatch a decree by improper means. We are forced to draw this inference on the basis of the following facts and circumstances of the case: (1) The plaintiff did not join the Assistant Collectors of Customs Jamnagar and Porbandar and the Appellate Collector Bombay who passed the impugned orders refusing to refund the amount (2) No attempt was made either by the plaintiff or by the trial court to serve the process or even to inform the Government Pleader of the District or Assistant Government Pleader who is readily available in the compound of the court. It is common knowledge that in all the matters against the Government usually the Government Pleader is always informed and he invariably appears for and on behalf of the Government and makes suitable arrangements to see that proper re presentation is made for and on behalf of the Government. No such attempt is made in this case. The plaintiff engaged as many as four advocates. No such attempt is made in this case. The plaintiff engaged as many as four advocates. One of the advocates of the plaint it was himself a District Government Pleader at this very place for a number of years. It appears that he either retired or ceased to be Government Pleader only before few months prior to the filing of the suit. He himself very well knew the procedure as to how and in which manner the Government made arrangements to make representation in such suits. As an officer of the court it was duty of the plaintiffs advocate to tell the court and request the court not to pass an ex-parte order against the Government. (3) The local officer of the Central Government who passed the order refusing the refund amount had his office in Jamnagar town itself. The plaintiff himself could have informed the local officer or at any rate it was incumbent upon the court in view of the provisions of O. V. Rule 9 to see that the local officer of the Central Government is duly served. (4) Assuming that the court and the plaintiff both failed to comply with the legislative mandate given in the Civil Procedure Code referred to hereinabove. them there was no reason for the plaintiff to oppose the application (i. e. Civil Misc. Application No. 161 of 1983) to set aside the ex parte decree. The attitude adopted by the trial court is also not understandable and to say the least most unusual and unhappy He relied upon the service of summons dated 4/07/1983 which during the Court of the proceedings be himself had considered to be not good and proper service because he himself had directed on 9/08/1983 to issue fresh summons. There is no reason given in the order why he took such a somersault and considered that the ervice dated 4/07/1983 was a good service. (5) There is no reason why the trial court did not comply with the legislative mandate contained in O. XXVII Rule 5b. It was incumbent upon him to call the officer concerned and try to understand the problem and then make an attempt to arrive at settlement in the matter. Before passing an order to proceed ex parte he could have and should have followed this procedure by calling the Assistant Collector of Customs at Jamnagar. It was incumbent upon him to call the officer concerned and try to understand the problem and then make an attempt to arrive at settlement in the matter. Before passing an order to proceed ex parte he could have and should have followed this procedure by calling the Assistant Collector of Customs at Jamnagar. (6) The trial court ought to have seen that the suit was for a decree of Rs. 57 lacs and odd. It was not an ordinary suit. The suit on the face of it involved several questions including the question of jurisdiction of the court itself and the question of entitlement of the plaintiffs to claim the refund. In the facts and circumstances of the case the question as to who is the real person entitled to receive back the amount was surely a basic and important question to be gone into. (7) The trial court passed an order to proceed ex parte on 1/09/1983 Thereafter within the period of three weeks the entire case is hushed up. In fact the actual proceedings of the case took place only on one day i. e. on 21/09/1983 On this day one witness of the plaintiff was examined oral evidence of ten pages was recorded documentary evidence was produced and on this very day the arguments of the plaintiff are heard and the type written judgment of 17 pages written/dictated and pronounced. It may be noted that in lower courts there is no practice of pronouncing oral judgments. The judgment running into about 17 typed pages was ready on the same day. As the proceedings show it was pronounced and signed on the same day. Thus recording of oral evidence (10 pages) hearing arguments writing judgment (type written) running into 17 pages pronouncing and signing the same all these things are done hurriedly on one day only. Why this undue haste? ( 39 ) IN the above view of the matter the finding arrived at by the trial court that the summons was duly served is completely erroneous. Having regard to all facts of this case (the title in the suit notice significant change while drafting the title of the plaint ex-parte proceedings single day proceeding for recording oral evidence arguments and judgment suppression of the claim of Insurer surreptitious withdrawal of large sums of Rs. Having regard to all facts of this case (the title in the suit notice significant change while drafting the title of the plaint ex-parte proceedings single day proceeding for recording oral evidence arguments and judgment suppression of the claim of Insurer surreptitious withdrawal of large sums of Rs. 14 lacs inspite of knowledge of objection of the insurer and illegally and unfairly bypassing the same by separating records etc.) it is likely that the plaintiffs had managed at some level to prevent appearance and contest in the suit. Even though the Government has not come out with such case and even though there is no direct proof of this a very strong suspicion and even a legitimate inference arises of such likelihood especially when the claim was of about 50 lacs. It is evident from the discussion made hereinabove that in this case the summons cannot be said to have been served at all. Therefore the trial court ought to have proceeded on the footing as to when the applicant had knowledge of the decree having been passed under Article 123 of the Limitation Act 1963 In this case there is affidavit of Mr. R. S. Siddhu Secretary Department of Revenue and Customs. The affidavit has remained uncontroverted and there is no reason to disbelieve the same. As stated in his affidavit he had come to know about the decree having been passed only on 29/10/1983 As stated by him the Assistant Collector of Customs came to know about the decree having been passed on 27/10/1983 Taking either of the two days 27 or 29th the application for setting aside the ex parte decree passed against the Government filed on 10/11/1983 was surely within time and therefore. the trial court has clearly erred in not entertaining the application the ground of limitation. It was incumbent upon the trial court to set aside the decree and thereafter proceed further in accordance with law. ( 40 ) IN the above view of the matter we are of the opinion that the order passed by the trial court rejecting te application to set aside ex parte decree is required to be reversed and set aside since the same is illegal an perverse as no reasonable person could have ever come to such a conclusion. Special Civil Application No. 1071 of 1985. . Special Civil Application No. 1071 of 1985. . ( 41 ) THE plaintiffs having realised the futility of the proceedings in the Civil court have also preferred during the course of the hearing Special Civil Application No. 1071/85. That petition is again suffering from the same infirmity. It is filed by the firm in its individual capacity as firm and not in any other capacity as is clear from the title. P. K. Patel is also shown as petitioner No. 2 only as partner of the petitioner No. 1 firm and in no other capacity. In para 2 it is again mentioned that petitioner is the transferee of actionable claim of NAFED and P. K. Patel is constituted attorney of Ingosstrakh Ltd. But P. K. Patel has not filed the petition as constituted attorney. In para 11 the petitioners have stated on oath that they have not filed any other proceeding either in this High Court or in any other court in respect of the subject-matter of this petition. This is correct only in respect of the petitioners personal capacities. As the constituted attorney of Ingosstrakh Ltd. this statement in para 11 would be incorrect because Ingosstrakh Ltd. has filed Writ Petition No. 945/83 in the Bombay High Court and it is pending. In that petition the petitioners are also respondent No. 4. Since Bombay High Court has already been moved by an earlier petition there is no question of entertaining this petition in this High Court especially at the instance of these petitioners who have no right and. therefore the petition is also dismissed and ruse discharged with costs. ( 42 ) BEFORE parting with these matters there are two things which are required to be dealt with. One is regarding the amount withdrawn by the petitioners-plaintiffs and retained by themselves under the decree which has been set aside by us. They have obtained these amounts by virtue of the interim order passed by the High Court in C. A. No 923/84. By that order they were permitted to withdraw the amount on furnishing security to the satisfaction of the trial court. Five partners of the plaintiff firm have given personal security bonds to become surety and they have bound themselves to produce and place at the disposal of the court when required the amount of Rs. By that order they were permitted to withdraw the amount on furnishing security to the satisfaction of the trial court. Five partners of the plaintiff firm have given personal security bonds to become surety and they have bound themselves to produce and place at the disposal of the court when required the amount of Rs. 3 lacs each as he ordered by the court in F. A. No. 236/84. In view of the gross and very clear facts of this case it is clear that the plaintiff firm is not entitled to the amount of Rs. 14 28 212 ps. withdrawn by them on 21/07/1985. It is much more so when the decree under which they have recovered the amount has been set aside. It is therefore ordered that the plaintiff firm and the five partners who have given the security bonds shall pay back to the appellant-de. fendant the aforesaid amount of Rs. 14 28 912 ps. with 19% interest from 21/07/1984 the date of withdrawal till payment and the plaintiff firm and all its partners and more particularly the five partners who have given the security bonds are hereby ordered and directed to pay the aforesaid principal amount with interest on or before 21/08/1985. Any breach or disobedience of this direction shall be treated as disobedience and contempt of this court. ( 43 ) THE other aspect which requires consideration is whether the High Court should direct any proceedings to be taken under section 195 of Cri. P. C. for offences punishable under Chapter XV of I. P. C. more particularly sections 209 and 210 (dishonestly making a false claim in court. fraudulently obtaining decree for sums not due) read with sections 109 and 120b I. P. C (abetment and conspiracy ). On this aspect both sides had addressed us at length and cited several authorities. At this stage we do not consider it proper to decide the question finally without giving an opportunity and without hearing the partners of the plaintiff firm and the advocates of the plaintiff who appeared in these matters in the trial court. It is therefore directed that notices he issued to all the partners (Ex. 11) of the plaintiff firm and to the advocates (Ex. It is therefore directed that notices he issued to all the partners (Ex. 11) of the plaintiff firm and to the advocates (Ex. 2) who appeared in the trial court on behalf of the plaintiff firm to show cause as to why criminal proceedings should not be taken against any or all of them and appopriate orders directing prosecution for offences under sections 209 210 read with secs. 109 120 I. P. C. should not be passed under sec. 195 (1) (b) of Cri. P. C. It would be open to each one of them to explain any of the circumstances and show cause against taking any such action of filing complaint by the High Court. Notice also to issue to the Public Prosecutor and Government Pleader High Court in this connection. Such notices shall be made returnable on 21/08/1985. ( 44 ) IN the result F. A. No. 236/84 and A. O. No. 14/84 are allowed with costs throughout and the judgment and decree in Special Civil Suit No. 57/83 passed by the learned 2nd Joint Civil Judge. Senior Division Jamnagar is quashed and set aside and the plaintiffs and its partners and the five sureties are directed to pay back to the appellant-defendant through the Assistant Collector of Customs Jamnagar. on or before 21/08/1985 the such of Rs. 14 28 212. 09 ps. with 12% interest from 21/07/1984 till the date of such payment and breach of this direction shall be treated as contempt of this court. Special Civil Application No. 1071/85 is dismissed and rule is discharged with costs. C. A. No. 1306/85 in A. No. 236/84 for amendment of the plaint is also dismissed with costs. C. A. No. 333/84 in A. O. No. 14/84 does not survive in view of the disposal of A. O. No. 14/84. Hence the is discharged wit-h no order as to costs. Office is directed to issue notices and directions forthwith. The learned Counsel for the respondent-original plaintiff prays that the operation and implementation of the judgment of this Court be stated for a period of six weeks so as to enable the respondent-plaintiff to approach the Supreme Court and obtain appropriate orders. In the facts and circumstances of the case the prayer for the stay is refused. Appeal allowed. .