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2017 DIGILAW 1464 (GAU)

Suman Baby Jaiswal v. Bharati Infratel Ltd.

2017-11-22

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. S.P. Choudhury, learned counsel for the petitioner/defendant. Also heard Mr. L.K. Borah, learned counsel appearing for the respondent/plaintiff. The respondent, which is a Private Limited Company, filed a suit against the present petitioner for recovery of an amount of Rs. 4,55,426/-. The pleaded case of the plaintiff, in short, is that the plaintiff is one of the largest tower infrastructure providers in the country and is also engaged in the field of passive telecom infrastructure. For smooth operation of various affairs of the Company, the plaintiff hires vehicles and the defendant, i.e. the petitioner in this civil revision petition, and the plaintiff had entered into an agreement dated 21.10.2010, on being approached by the defendant, i.e. M/s. Suman Baby Jaiswal, for providing vehicles on hiring basis to the plaintiff. However, from the month of May, 2012, the plaintiff had not hired any vehicles from the defendant. The plaintiff also used to hire vehicles from another service provider, namely, Suman Jaiswal. Because of the similarity of names, an amount of Rs. 14,56,726/-, actually meant for Suman Jaiswal, came to be wrongly credited in the account of the defendant, i.e. M/s. Suman Baby Jaiswal. Upon request and demand made by the authorized representative of the plaintiff, an amount of Rs. 10,01,300/- was paid back to the plaintiff leaving a balance amount of Rs. 4,55,426/-. As the said amount was not paid despite repeated requests, it was necessary for the plaintiff to file the suit. 2. The suit was filed on 02.07.2015 and Mr. Choudhury submits that summons was served on 15.08.2015. Date for appearance and written statement was fixed on 18.9.2015. On 18.09.2015, the defendant appeared and prayed fortune for filing written statement and accordingly, while allowing the prayer of the defendant, 30.01.2016 was fixed for filing written statement. On 30.01.2016, the defendant remained absent without steps and the learned trial Court fixed 21.03.2016 for ex parte hearing. On 21.03.2016, the defendant filed a petition for vacating the ex parte order dated 30.01.2016 and also to allow the defendant to file written statement. On this application, Misc. (J) Case No. 152/2016 was registered. The plaintiff filed objection to the said petition. 3. The learned trial Court, vide order dated 20.03.2017, rejected Misc. (J) Case No. 152/2016. This order dated 20.03.2017 is one of the orders challenged in this petition. On this application, Misc. (J) Case No. 152/2016 was registered. The plaintiff filed objection to the said petition. 3. The learned trial Court, vide order dated 20.03.2017, rejected Misc. (J) Case No. 152/2016. This order dated 20.03.2017 is one of the orders challenged in this petition. There is another order dated 02.08.2017, which is also impugned in this petition. The order dated 02.08.2017 indicates that the plaintiffs side had submitted evidence of 2 (two) PWs and that 31.08.2017 was fixed for ex parte arguments. The order also takes note of a petition No. 2930/2017, which was rejected on the ground that the learned counsel appearing for the plaintiff had submitted that there was no scope for any compromise. The petitioner has not brought on record the said petition but Mr. Choudhury submits that the same was a petition seeking further time for compromise. 4. In the petition filed under Order IX Rule 7 CPC, based on which Misc. (J) Case No. 152/2016 for vacating ex parte order dated 30.01.2016, it was stated that the defendant, who is ordinarily a resident of Shillong, was in a bed-ridden condition for a quite long time and was unable to contact the counsel at Guwahati and that there was no laches or negligence on the part of the defendant. In the objection filed, the plaintiff had stated that the petition was filed with the sole motive of delaying the process of the Court and as such, prayed for dismissal of the petition. 5. The learned trial Court noted that there is nothing in the record to indicate that the defendant was bed-ridden for a long time. It was also noted that the application for setting aside the order dated 30.01.2016 was not accompanied by a written statement. 6. In the petition, a casual statement was made by the defendant that she was in a bed-ridden condition for a quite long time. Even the nature of ailment is not indicated. Vacation of an ex parte order is not a routine affair and it cannot be taken for granted that on mere filing of an application without showing good and sufficient cause, Court will be obliged to vacate the order and allow the defendant to take part in the proceedings by filing written statement. 7. No steps was taken by the defendant after passing of the order dated 20.03.2017 for nearly about 5(five) months. 7. No steps was taken by the defendant after passing of the order dated 20.03.2017 for nearly about 5(five) months. The explanation offered by Mr. Choudhury is that the defendant was trying for a negotiable settlement. The defendant could not have assumed that the plaintiff would compromise the matter. Only after the order dated 02.08.2017 was passed when the plaintiff filed its evidence, this petition was filed on 28.08.2017. 8. In the facts and circumstances of the case, I am of the opinion that no case is made out to interfere with the orders impugned in this petition. Accordingly, the civil revision petition is dismissed. Interim order passed earlier, needless to say, shall stand vacated.