J S SOOD Vs. JOHNY BAKSHI

JUDGEMENT

(1.) It would be necessary to narrate the facts of the case as a prelude to the disposal of the pending application i.e. 10400/92. Suit No. 1711-A/83 was a petition under Section 20 of the Arbitration Act, 1940, pursuant to which the disputes between the parties were referred to the Sole Arbitration of the person agreed upon by the parties. Their Advocates thereafter appeared before the Sole Arbitrator from time to time and the Award was passed. Mr. Ashok Grover subsequently filed an application for withdrawing from the case, which was allowed. Thereupon notice of the proceedings was issued to the Defendant and after his non-appearance despite having been served at his residence, he was proceeded ex parte on 6.2.1987. On an application filed by Shri Ashok Marwaha, Advocate these Orders were recalled and I.A. Nos. 6425/91 and 6427/91 to 6329/91 were listed for disposal before the same Bench. On the following date I.A. 6429/91 was allowed and thereby Suits Nos. 1710-A/83, 1711-A/84 and Ex. 53/90 were ordered to be tried by the same Judge. The same sequence of events as appears to have compelled Mr. Ashok Grover to withdraw his vakalatnama ensued with Mr. A.K. Marwaha and he was also permitted to withdraw from the case on 13.7.1992. On the same day I.As. 6427-28/91 were dismissed in default, but already one decade had passed. It is noteworthy that I.A. 6427/91, quite inexplicably, had been filed in all the three Suit Nos. 1710-A/83, 1711-A/83 and 774-A of 1988. In order to ensure that substantial justice is carried out I shall treat this application as having been filed in each of the three suits although this is most irregular and these Orders shall not be treated as a precedent validating such practice. Keeping the conduct of the Judgment Debtor/Applicant in perspective I had earlier thought that it would have been in order to decline to treat this application as pending in all three matters. But perhaps imposition of heavy costs, instead, would be the better course. This application, under Section 151 of the Code of Civil Procedure was for "recall of ex parte decree, for stay of operation of the decree and all actions taken & carried out and all further actions in terms of and in pursuance to/of the decree pending decision of E.A. 104 of 1991 in Ex. Proceedings No. 53 of 1990 and application under Order IX Rules 7 and 13 read with Section 5 of the Limitation Act filed in the registry vide number 4899 on 22nd day of March 1991 without imposition of any terms and without security". As I see it, this compendious and all-encompassing application was filed with the mala fide intent of causing confusion in the cases and obstructing their expeditious disposal. A grave miscarriage of justice has been occasioned. I.A. 6428/91 was similarly one application in all three suits, under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure. Both these applications were dismissed in default on 13.7.1992. Before proceeding further, I may mention that the contents of these applications are a litany of the failures of Ranjit & Co., Advocates & Solicitors, Bombay, and Shri Ashok Grover, Advocate, Delhi, and lengthy averments/arguments against the Award and the conduct of the Plaintiff/Decree Holder, and repetition of the much belaboured argument that a party, (however negligent he may be), should not suffer for the alleged default of his advocates. As usually happens, this homily expressed thorough Mr. Marwaha, boomeranged and recoiled on him when Mr. Harish Malhotra, Advocate, entered upon the scene consequent on the withdrawal of the Marwaha with I.A. 10400/92 dated 29.7.1992. Mr. Malhotra has also filed another application E.A. 243/92 in Ex. 53/90, dated 29.7.1992 for restoration of E.A. 104/91. It is also relevant, that these reasons are expected to be countenanced by the Court even though no complaint against the Advocates, who have been allegedly paid heavy fees and whose conduct is assailed as grossly and singularly negligent, has been filed by the Applicant/Judgment Debtor before the Bar Council. Although, in the course of his arguments Mr. Malhotra had agreed that the compendious application filed by Mr. Marwaha should have been preferred in each of the three suits, he has traversed on the very same path, with the added default of not even affixing the requisite court fee for three applications; I.A. 10400/92 has been filed by him under Order IX Rule 9 read with Section 151 Civil Procedure Code for restoration of the applications I.A. 6425/91, 6427/91, 6428/91 6429/91 and 6463/91. When the matter was listed for disposal/arguments before me, the Plaintiff/Decree Holder argued the case in person as he might probably have run out of funds for payment of legal fees in a litigation which had spanned almost two decades. The Decree Holder is justifiably fatigued. At every stage of the case, the Applicant/Judgment Debtor has abused the judicial process, which is always vulnerable to such assaults because of the inculcation of the practice of granting a patient hearing to every litigant. I need hardly add that the reasons now articulated, through Shri Harish Malhotra, are predictably a castigation of the conduct of Shri Ashok Marwaha, Advocate, the previous advocate of the Applicant/Judgment Debtor.

(2.) The easiest approach available to me would have been to take up I.A. No. 10400/92, and because of the opinion already formed by me, to dismiss it and thereby put an end to the dispute. Perhaps, this would be so, but unlikely, since the Applicant has palpably become habituated to filing frivolous actions in Court, so as to ensure their continuous pendency, much like a festering wound which cannot turn fatal.

(3.) Suit No. 775-A of 1988 is the petition of the Arbitrator under. Sections 14 and 17 of the Arbitration Act, 1940. His Award accompanies this petition. On one of the many hearings, this petition was listed before Court on 3.11.1988 when Mahesh Chandra J. observed that there was no representation on behalf of the Judgment Debtor despite service. However, the Learned Judge did not make the Award Rule of the Court, but adjourned it for further hearing to 22.11.1988. Eventually, after noting that no Objections to the Award had ben filed, the Award was made Rule of the Court on 12.1.1989. Interest at the rate of 12 per cent per annum on the principal amount from the date of the decree till realisation was also granted. It is this decree of which execution has been initiated in Ex.53/90; when attachment was carried out, Mr. Marwaha filed E.A. 104/91, for recalling the transfer of the decree to Bombay, and for stay of the decree. This was followed by Mr. Malhotra filing E.A. 243/92 for restoration of E.A. 104/91 dismissed in default on 13.7.1992.