Judgment:
GA No.2322 of 2013 CS247of 2005 IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE M/S.SAILA MOTORS PVT.LTD.VERSUS SUNIL KUMAR BANKA & ORS.BEFORE : THE HON’BLE JUSTICE SOUMEN SEN DATE : 8TH NOVEMBER,2013.
For the petitioner : Mr.Shiv Shankar Banerjee,Advocate Mr.Debmalya Ghosal,Advocate Mr.R.Mazumdar,Advocate For the respondents : Mr.Siddharta Banerjee,Advocate Mr.Sabyasachi Sen,Advocate Mr.Deb Kumar Sen,Advocate THE COURT :- This is an application for recalling of an ex parte decree dated 2nd April,2009.
In the application the petitioner has prayed for condonation of delay of 1550 days in filing the said application.
The petitioner states that on 14th November,2005 the writ of summons was served upon the original defendant who had entered appearance through his learned Advocate-on-Record in order to contest the proceeding.
The original defendant had also filed an application on 25th May,2006 in GA No.1253 of 2006 praying for an extension of time to file the written statement.
During the pendency of the suit the plaintiff filed an application under Chapter 13A of the Original Side Rules against the original defendant on 16th May,2006.
The original defendant duly contested the suit.
During the pendency of the aforesaid applications the original defendant expired.
The learned Advocate-on-Record of the original defendant had already communicated the death of the original defendant by a letter dated 17th January,2008 to the learned Advocate-on-Record of the plaintiff for taking steps for substitution.
The plaintiff on the aforesaid basis had taken out an application for substitution and the same was disposed of ex parte.
Thereafter on 5th May,2009 the petitioner ascertained that the plaintiff had obtained an ex parte decree on April 2,2009.
The petitioner alleged that the plaintiff had deliberately not served the summons at the residential address of the petitioner.
It was further alleged that the writ of summons was served upon a person not authorised to accept summons and, in fact, the person named and alleged to have received summons is unknown to the petitioner.
The petitioner had filed an application for setting aside an ex parte decree being GA No.1560 of 2009.
The said application was dismissed on 13th May,2013 with liberty to the petitioner to take out another application of the self-same cause of action.
On that basis, the instant application has been filed.
Mr.Mr.Siddharta Banerjee,learned Counsel appearing on behalf of the plaintiff/decree-holder submitted that the applicants had due notice of the pending proceeding and they have deliberately not appeared and allowed the suit to proceed which resulted in an ex parte decree being passed in favour of the plaintiff on 2nd April,2009.
The plaintiff/applicant seriously contested the claim of the defendant that service of the summons was made deliberately at an incorrect address.
After considering the submissions made on behalf of the parties, it appears that the original defendant had contested the said proceeding till his death.
It was only after his death that there could be some latches on the part of the applicants.
The explanation given by the defendant may not be fully accepted but at the same time it cannot be said that on the basis of what has been stated the petitioner should not be given an opportunity.
The fact remains soon after the ex parte decree was passed, an application was filed for recalling of the said ex parte decree.
The original defendant was diligent in prosecuting his claim and it was due to the pendency of the application for extension of time to file the written statement and the application for summary judgment that the original defendant could not file the written statement.
The plaintiff has also not proceeded with the application for summary judgment.
It was only when the conduct of the defendant is grossly negligent that the Court may not permit the defendant to contest the proceeding.
In the instant case, the original defendant was diligent in prosecuting his claim.
Moreover, having regard to the fact that the entire claim made in the plaint is secured by furnishing the bank guarantee, I am inclined to allow the defendant to contest the suit by filing a written statement within a period of one week from date upon payment of cost of Rs.10,000/- in favour of the plaintiff.
The payment of cost is condition precedent to the filing of the written statement.
The defendant is directed to put in cash security of Rs.13 lakhs with the Registrar, High Court, Original Side within two weeks from date and upon payment of such amount, the bank guarantee furnished by the defendant shall stand discharged.
The Registrar, High Court, Original Side shall keep the aforesaid sum in an interest bearing short term fixed deposit account with a nationalised bank until further orders of this Court.
The defendant shall disclose the documents along with the written statement within the aforesaid period and the plaintiff correspondingly shall discover and offer inspection of the documents to the defendant within two weeks from date and shall prepare and file Judge’s brief of documents soon thereafter.
The suit shall appear in the monthly list of December,2013.
It is made clear that in the event the bank guarantee is not replaced by the cash security as directed by this order, the defence of the defendant shall be struck off.
All parties and the Registrar, High Court, Original Side are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN,J.) S.Chandra AR(CR)