BANK OF BARODA Vs. MENUBHAI JIVANJI PATEL

JUDGEMENT

(1.) Heard ld. Counsel Mr. Indravadan Parmar for the petitioner. There is no resistance from the other side.

(2.) By filing present Civil Revision Application and invoking jurisdiction of this Court under Section 115 of CPC, the petitioner has challenged the legality and validity of the order passed below application Exh.33 submitted by the original defendant No.1 dated 21.09.2004 whereby the ld. Civil Judge (S.D.), Valsad dismissed Special Civil Suit No.124/1997. The said suit was filed for recovery of Rs.6,72,331=00 against loan granted by the Bank against the original debtor and two guarantors.

(3.) The grievance expressed by the defendant No.1 before the lower Court in the application exh.33 was that the plaintiff had failed in serving the summons to him as contemplated under the scheme of Rule 5(1) of Order 9 of CPC. Undisputedly, the Court has privilege to dismiss the suit for default if the plaintiff fails in paying the process fees for service of summons. However, here in the present case, there are more than one documents which clearly shows and suggests that desperate attempts were made by the plaintiff Bank to see that defendant no.1 is served. Three defendants have been prosecuted by the plaintiff and two of them were served and had appeared before the Court as party defendants, but they had not filed their formal written statement. It is contended in the CRA by the petitioner Bank that defendant No.1 was out of India and was not available for service even at this residence, in a the village and so the plaintiff Bank could not serve summons to him, but on return of defendant No.1 back to India, the Bank served the process. After service of the process, defendant No.1 appeared and approached the court with one application i.e. exh.33 that the suit against him be dismissed and it was argued before the lower Court that the entire suit requires to be dismissed on account of failure in paying process fees and serving the summons to the party-defendants. The ld. Trial Judge has not applied mind on the point whether the suit against unserved defendant No.1 only could have been dismissed. There is some force in the arguments of ld. Counsel Mr. Parmar appearing for the petitioner Bank that the provisions of Sub Rule (1) of Rule 5 of Order 9 of CPC is directory leaving large discretion and it should be read in reference to the context of entire scheme.