BCL FINANCIAL SERVICES LTD Vs. PASHUPATI NATH PRASAD

JUDGEMENT

(1.) This Revisional Application is directed against the order dated 4th January, 2000 passed by the learned Chief Judge, City Civil Court, Calcutta in T.S. No. 1756/94 allowing an application filed by the defendant of that suit for setting aside the compromise-decree on the ground of fraud after rejecting an application filed by the plaintiff (present petitioner) for taking evidence as to whether the alleged fraud had been committed. The said Title Suit was filed by the plaintiff, BCL Financial Services Ltd. the present revisional applicant under section 17 of the Arbitration Act, 1940 for passing a judgment and decree upon an award of the Arbitrator. The defendant who is O.P. No. 1 of the present revisional application, Sri Pashupati Nath Prasad, had notice and knowledge of the said award of the Arbitrator but he did not file any petition for setting aside the same. After the said application under section 17 of the Arbitration Act, 1940 was filed before the City Civil Court on June 14, 1994, a notice was directed to be served on the defendants of the suit including the defendant No. 1 (the present O.P. No. 1) by the Court's order dated 15th July, 1994. By its order dated 4th January, 1995 the next date was fixed on 20th May, 1995 for service return of the notice sent to the defendant No. 1 by registered post. But before that date came and the service-return of the said notice could be recorded by the Court, the defendant No. 1 having received the notice contacted the plaintiff-petitioner out of Court along with the defendant No. 3 and for the purpose of avoiding complication proposed a mutual settlement with the petitioner, so that the award could be modified. Thereafter, the parties arrived at an amicable settlement and on the basis thereof a petition of compromise was prepared incorporating therein the terms of the settlement. Thereafter a joint petition was made by the parties before the Court for passing a decree in terms of that compromise and the defendant No. 1 not only signed the terms of the settlement but also affirmed an affidavit in support of that joint petition. Thereafter, another petition was filed before the Court for an order for putting up that petition with the records of the concerned suit and for passing necessary orders on the said petition, since it was being filed well ahead of the date fixed. The learned Chief Judge, City Civil Court, Calcutta allowed that petition and when the records of the case were placed before him heard the learned advocates, perused the records and found the compromise to be legal, valid and sufficient and then ordered the suit to be decreed on compromise by its order No. 4 dated 8th February, 1995. The defendant No. 1 accepted the said compromise-decree under the terms of which he was to pay a sum of Rs. 3,73,250/- in thirty-five (35) equal monthly installments commencing from January 15, 1995, each monthly installment amounting to Rs. 10,750/-. But the defendant No. 1 again defaulted in making payment of the said installments so that as per terms of the compromise the plaintiff-petitioner obtained possession of the concerned vehicle on 8th October, 1995 with the help of the local police. Thereafter, the defendant No. 1 filed an application under Order 9 rule 13 Code of Civil Procedure, 1908 before the City Civil Court for setting aside that decree on the ground that it was an ex-parte decree passed to his ignorance and he also filed another petition under Order 23 rule 3, Code of Civil Procedure, 1908 praying for setting aside the compromise-decree on the allegation that it had been procured by exercising fraud. The learned Chief Judge, City Civil Court after hearing that petition under Order 23 rule 3 Code of Civil Procedure, 1908 dismissed it summarily. There against the defendant No. 1 preferred a revisional application before this High Court and a single Bench of this Court (S. Banerjea, J.) by his order dated March 12, 1998 set aside that order of dismissal and directed the Court below to dispose of the application under Order 23 rule 3 expeditiously in accordance with law within four months from the date of communication of the order. This order of the Hon'ble High Court was filed before the Court below on 12th May, 1998, but no copy of the petition whereby the order was communicated to the Court below and a date was fixed by the Court below for its hearing was served on this petitioner and so, on the date fixed for hearing of this petition this petitioner could not appear and the said application under Order 23 rule 3 Code of Civil Procedure, 1908 of the defendant No. 1 was allowed ex-parte by order No. 26 dated 23rd June, 1998. The defendant No. 1-applicant examined his witness but due to the absence of this petitioner he was not cross-examined and an ex-parte order was passed by the Court on that application under Order 23 rule 3 Code of Civil Procedure, 1908. Later, this petitioner having come to know of such an ex-parte order applied under section 114 read with section 151 of the Code for recalling the said order dated June 23, 1998 and that petition was allowed by the Court by its order dated 26th August, 1998 and as a result, the said application under Order 23 rule 3 Code of Civil Procedure, 1908 was revived and was to be heard. In this way the application could not be heard within the period fixed by the Hon'ble High Court, that is, four months from the date of communication of the order and because of pre-occupation of the trial Court with various matters more than a year elapsed without the matter being heard. Ultimately the matter was fixed on 7th September, 1999 for hearing. In that date the defendant No. 1 failed to appear personally and a prayer for adjournment was filed on his behalf to enable him to adduce evidence, but that application was rejected by the Court and thereafter by the next order of the same date the Court in view of absence of the defendant No. 1 rejected the petition under Order 23 rule 3 Code of Civil Procedure, 1908. The defendant No. 1 preferred a revisional application against the order before the High Court and a single Bench of this Court (B. Bhattacharyya, J.) set aside the said order dated 7.7.1999 directing the Court below to give one more chance to the said defendant No. 1-OP to adduce his evidence and if he does not appear or adduce any evidence, then the Court could proceed in accordance with law. The trial Court was further directed to dispose of the petition under Order 23 rule 3 in question within the 1st week of January 2000 positively. Ultimately, on 4th January, 2000 the matter was taken up for hearing by the trial Court, namely, the learned Chief Judge, City Civil Court and on that date the plaintiff (the present petitioner) made a prayer before that Court for deciding the matter after taking evidence from the parties on the ground that without such evidence it was difficult for the Court to ascertain whether the compromise-decree had been fraudulently obtained as alleged. But the learned Court without paying any heed to that reasoning of this petitioner rejected that prayer and passed the impugned order allowing the application under Order 23 rule 3 Code of Civil Procedure, 1908 filed by the defendant No. 1OP. after arriving at a finding that the compromise-decree had been obtained by the plaintiff-petitioner by exercising fraud without giving an opportunity to the parties to adduce their respective evidence in the matter.

(2.) Being aggrieved by that order the plaintiff-petitioner has preferred the present revisional application challenging the said order as erroneous and unjustified and liable to be set aside.

(3.) It has been contended by the petitioner that the observation of the Court below to the effect that no evidence was required in this case to prove the allegation of fraud because fraud was ex-facie evident from the records is totally unfounded and unacceptable. According to the petitioner, further the findings of the Court below are strange that since the parties resided in different states, it would take a long time to take their evidence and since there was no direction given by the Hon'ble High Court to take any such evidence from the parties and in view of the fact that the Hon'ble High Court had directed the trial Court to dispose of the matter within the 1st week of January, 2000, the learned Judge did not consider it proper to allow the parties to adduce their evidence on the alleged story of fraud because thereby the date of hearing would be shifted beyond the date prescribed by the Hon'ble High Court for disposal of the matter.