RADHAKRISHNA CARRIERS PVT. LTD. Vs. PELHAR AUTOMOBILES

JUDGEMENT

(1.) Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

(2.) The writ jurisdiction of this Court is invoked against the order dated 08.07.2013 passed by the learned Judge of the City Civil Court, Greater, Mumbai, by which order, Notice of Motion No.427 of 2013 filed by the Petitioners herein came to be dismissed. The Petitioners are the original Defendants in the suit in question being Summary Suit No.4914 of 2012 filed by the Respondent herein under Order XXXVII of the Code of Civil Procedure for recovery of a sum of Rs.6,06,110/ towards the supply of petroleum products to the Petitioners between the period 2006 to July 2011. In the said suit, summons came to be served on the Petitioners. The Vakalatnama on behalf of the Defendants came to be filed on 10.12.2012. The same was taken on record and marked as Exh.2. The suit was thereafter adjourned to 4th February, 2013 for directions. It seems that on 28th December, 2012, a summons for judgment was moved before the Trial Court by the Plaintiff and leave was sought to register the same. The Trial Court passed an order directing the Plaintiff to register the Summons for Judgment on or before the next date. On behalf of the Plaintiff, a request was made for preponing of the date from 04/02/2013. The date was accordingly preponed to 09.01.2013. On the said date i.e. 09.01.2013 the Summons for Judgment was made returnable on the Plaintiff's undertaking that the date would be communicated to the Defendants. It appears that when attempt was made to serve the Summons for Judgment on the advocate for the Defendants on 26th December, 2012, the office of the advocate was found locked and therefore, the same was served on the Defendants on 28.12.2012. When the suit came up before the Trial Court on 09.01.2013, the affidavit of service evidencing the service effected on the Defendants was filed in the Court and was marked as Exh.3. The Summons for Judgment was adjourned for hearing to 14.01.2013 at 2.45 p.m.. In view of the fact that no appearance put up on behalf of the Defendants on 14.01.2013, the Summons for Judgment came to be made absolute and a decree was passed in the following terms :

(3.) It is the case of the Defendants that when another Summary Suit bearing No.4913 of 2012 filed by one M/s. Manor Auto Service against the Defendants was on board of 31.01.2013 that the advocate for the Plaintiffs, who is also appearing for the Plaintiffs in the said suit made a statement that a decree has been passed in the present suit and after the hearing in the said suit filed by the said M/s. Manor Auto Service concluded, furnished a xerox copy of the judgment passed in the present suit along with his covering letter dated 13.01.2013. The Defendants thus having acquired knowledge of the decreeing of the Summary Suit No.4914 of 2012, filed Notice of Motion No.427 of 2013 for setting aside the said decree. In the affidavit in support of the Notice of Motion the fact that the Summons for Judgment was served upon the Defendants on 28.12.2012 was accepted. However, it was stated that when their advocate was sought to be contacted by the Defendants, it was found that he was out of station in view of the fact that there was Christmas Vacation. It has been averred in the said affidavit in support that in view of the fact that the Partner - Proprietor Mr. Purushottam Mane i.e. the Respondent No.3 herein was unwell on account of which he was advised bed rest from 01.01.2013 to 22.02.2013 that the papers could be entrusted to the advocate only in the last week of January, 2013. It was further averred that since the returnable date of Summons for Judgment could not be intimated to the advocate, the advocate could not appear on 09.01.2013 as he was under the impression that the suit would appear on board as per the date granted on 10.12.2012 i.e. 04.02.2013. It was averred that both the Applicants i.e. the Defendants could not appear for the reasons aforestated which resulted in the decree being passed in the suit. It has lastly been averred that the Defendants have a good, valid and substantial case on merits to the alleged claim of the Plaintiffs and the suit involves triable issues. In the affidavit in support, a reference is made to another Summary Suit bearing No.4913 of 2012 filed by the said M/s. Manor Auto Service. It is therefore, prayed that the Court be pleased to set aside the exparte decree dated 14.01.2013. The said Notice of Motion was replied to on behalf of the Plaintiffs. The reasons mentioned in the affidavit in support as to why the Defendants were unrepresented on 09.01.2013 and thereafter on 14.01.2013 when the decree has been passed is questioned. The ground made out in the affidavit in support of the illness of the PartnerProprietor is questioned on the ground that there are other persons who are concerned with the Defendant Nos.1 and 2 and who could have taken steps to see that the Defendants are represented. The Plaintiff therefore, prayed for rejection of the Notice of Motion filed for setting aside the decree.