Judgment:
Dalvi Roshan, J.
1. Unconditional leave was granted to the defendants in the Summons for judgment taken out in this suit on 28th August, 2000. The defendants were directed to file their written statement within 12 weeks of that date. Parties were directed to file their affidavits of documents within 8 weeks thereafter and complete the discovery and inspection within 8 weeks thereafter. Suit was transferred to the list of Commercial Causes. The defendants were to file their written statement by 27th December, 2000. The defendants failed to file their written statement. The further directions were not complied. The suit could not appear on the list of Commercial Causes. The order on the Summons for judgment remained at that. Due to such noncompliance, decree under Order XXXVII, Sub-rule 3(6)(b) was required to be passed. Since the directions given at the hearing of the Summons for judgment were not complied and the plaintiff became entitled to judgment forthwith.
2. Some how no judgment came to be passed for many years.
3. On 27th June, 2007 the defendant sought to file the written statement. It remained under objection inter alia because leave of the Court was not obtained for condonation of the delay in filing the written statement.
4. The parties sought to settle the dispute by filing certain consent terms in April, 2008. The decree to be passed in terms of Consent Terms was dependent upon certain private criminal complaints lodged by the defendants against the plaintiff in 1999 in which process came to be issued only in August, 2007. Hence, after executing the Consent Terms and tendering them to Court, the parties made a request for deferring of the order in terms of the Consent Terms. Consequently on 24th April, 2008 though the Consent Terms were placed on record and filed, the suit came to be adjourned beyond vacation for passing of the decree in terms thereof. The parties did not pursue the Consent Terms. No decree was passed in terms thereof. The written statement remained to be filed. The defendants did not obtain leave of the Court to file the written statement. The suit appeared on board as an undefended suit. On 19th June, 2008 the Court recorded that the minutes of the Consent Terms were placed on record, but in view of the lack of settlement between the parties the Consent Terms came to be rejected. Suit was directed to be proceeded. Court recorded that unconditional leave was passed with directions to file written statement within 12 weeks, but was not followed until 27th June, 2005 and which until then was still under objection. Even the copy of the written statement was not served upon the plaintiff. The Court directed the defendant to serve the copy of the written statement within one week and adjourned the suit. On 20th June, 2006 the written statement yet remained under objection. Even on that date an application was not moved for condonation of delay. The copy was also not served. Hence, the Court observed that the plaintiff was entitled to a judgment under Order XXX VII, Sub-rule 3(6)(b) of the C.P.C. and stood over the suit for judgment in the next week.
5. On 3rd July, 2008 the defendant remained absent. The defendant was not represented by any Advocate. The Court recorded non-compliance of the directions passed under the Summons for judgment. The Court again recorded the fact of the written statement having been filed as late as on 27th June, 2005, which was still under objection without seeking permission of the Court. The Court also recorded that no application was moved even on that day for such permission. The Court perused the facts of the case and held that the plaintiff was entitled for the judgment under the provisions of Order XXXVII, sub-rule 3(6)(b) of the C.P.C. The Court passed the decree accordingly. The decree/judgment is indeed passed under Order XXXVII, Sub-rule 3(6)(b). The defendant has applied for setting aside the decree under Order XXXVII, Rule 4 of the C.P.C. The defendant has to show special circumstances for having it set aside.
Order XXXVII Sub-rule 4 runs thus:
4. Power to set aside decree: After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside the execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.
6. Consequently it is seen that to set aside the decree and if necessary to stay or set aside execution the Court would have to give leave to the defendant to appear in the Summons for judgment and to defend the suit if it is reasonable to do so. In this case the Summons for judgment has been disposed off on merits. The Court has already granted leave to the defendant to defend the Suit. The leave has been granted about 8 years before. The defendant was directed to file his written statement since December, 2000. There is no question now to grant the defendant leave to appear in the Summons for judgment and defend the Suit. All that the defendant was required to do was to apply for condonation of delay and to file the written statement which has not been done.
7. It is seen that the defendant has been served. It has appeared. It has shown its defence in the Summons for judgment. It has not carried out the directions to file written statement. The suit, to that extent, has been undefended. A judgment has been passed not under Order XXXVII, Rule 3(6)(a), but under Order XXXVII, Sub-rule 3(6)(b). Under Sub-rule 6(a) the plaintiff would be entitled to judgment if the defendant had not applied for leave to defend or if leave to defend was refused. But under Rule 6(b) the plaintiff would be entitled to judgment only if the defendant failed to give security or carry out the directions passed at the time of the hearing of the Summons for judgment. There is an essential distinction in the 2 procedures. The judgment under Sub-rule 6(a) (supra) would be passed for nonappearance of the defendant. It would be analogous to an Ex-parte decree passed under Order IX, Rule 6(a) of the C.P.C., which would apply to a Regular Suit. The judgment passed under Sub-rule 6(b) (supra) would be analogous to a judgment passed under Order VIII, Rule 10 of the C.P.C., which would apply to a regular Suit.
8. The provisions of Order XXXVII, Rule 4 to set aside the decree essentially show the decree passed without considering the defendant's case in the Summons for judgment. Hence, upon showing special circumstances the defendant could have the decree stayed and be granted leave to defend the Suit. The fact that the Rule 4 requires the Court to pass an order to grant leave to appear in the Summons for judgment and defend the suit essentially considers that the defendant has until then not appeared in the Summons for judgment and not had the opportunity to defend the Suit. In this case the defendant has been given leave to defend the suit already. An order passed under Order XXXVII, Sub-rule 4 would, therefore, be innocuous since the defendant has already been granted leave. The defendant cannot be again granted leave to defend. The defendant had to avail of the leave granted to him 8 years ago. He has failed to avail of that leave. His application under Order XXXVII, Sub-rule 4 is, therefore, wholly misconceived. Since the defendant was granted leave to defend, but failed to defend by not following the directions of the Court in filing the written statement within the time granted to the defendant and also not applying for condonation of delay for filing the written statement defendant has to face the judgment that has been passed against him. The defendant's position is much the same as of a defendant in a Regular Suit, who though having appeared in the suit and having been represented in the suit has failed to present the written statement, called for by the Court constraining the Court to pronounce judgment against him.
9. Once the judgment is pronounced the jurisdiction of the Court comes to an end. Hence, as in the case of a judgment being pronounced under Order VIII, Rule 10 of the C.P.C once judgment is pronounced under Order XXXVII, Sub-rule 3(6)(b) of the C.P.C, also an appeal would allow therefrom. This Court would not have the jurisdiction to set aside its own decree and to grant the defendant any further leave.
10. Be that as it may, the defendant has sought to argue the case on merits to show 'special circumstances' to set aside the decree/judgment dated 3rd July, 2008. Paragraph No. 3 of the affidavit in reply shows that the defendant's written statement was ready, but was not filed on account of two reasons:
(i) Heavy and grave losses incurred by the defendants in their business,
(ii) Non-availability of defendant's Director due to their over involvement in survival of the project.
11. It has to be seen whether these two reasons of losses and non-availability of Directors would be special circumstances shown as required under Order XXXVII, Rule 4 of the C.P.C. The defendant has successfully defended the Summons for judgment and obtained unconditional leave to defend. The defendants had only failed to file their written statement. The failure has been for 8 years in place of the 12 weeks granted to the defendant.
13. The defendant's Advocate argued that the written statement was ready and filed on 27th June, 2005 and then remained under objection. He argued that-that was because the resolution of the board was not filed and not because directions of the Court were not followed. It is seen that it remained under objection because a permission of the Court itself was not obtained. Even if the period only prior to 27th June, 2005 has to be considered the losses of the defendant and the non-applicability of its Directors would not be any special circumstances because the defendants defended the Summons for judgment on merits despite both of these factors. Hence, no special circumstances are also shown. In fact no reason for condonation of delay in filing the written statement is shown to have been made out.
13. It is now too late in the day to even consider and condone such gross delay. Despite the specific observation of the Court on 19th June, 2008 and 26th June, 2008 no application for condonation of delay was moved.
14. It may be mentioned that the defendant had sought to take out a Notice of Motion on the eve of the judgment day. Though the notice of motion shows that it was typed in June, 2008 and is sought to be moved on 29th August, 2008, the affidavit in support of the Notice of Motion was affirmed on 2nd July, 2008. The Notice of Motion was filed on 23rd July, 2008, well after the judgment came to be passed in the suit disposing off the suit itself.
15. The defendant has sought to contend that though the Advocate was absent the representative of the defendant was present on 3rd July, 2008 but his application was not considered and the judgment was passed. It may be mentioned that the Court itself observed twice about the fact of the lack of application for condonation of delay in filing the written statement. The Court adjourned the suit twice after making those observations. No application came to be made even on the judgment day. The judgment dated 3rd July, 2008 itself mentions that the written statement was still under objection. Permission of the Court was not sought and the defendant did not make any application in that behalf. The defendant's affidavit to the contrary is not only contemptuous but perjurial. It is best ignored.
16. The Advocate for the plaintiff has nevertheless taken me through the affidavit. The reasons for condonation of delay in filing the written statement shown in paragraph 3 of that affidavit and the special circumstances shown in paragraph 3 of that affidavit in this Notice of Motion are losses and non availability of Directors. However, the reason for non-availability of the Directors in the previous affidavit is that they had been abroad 'for the purpose of taking jobs'. The reason for non-availability of the defendant's Directors in the affidavit in this Notice of Motion is their 'over involvement in the survival of the project'. The project is in India. Hence it would imply that they remained in India and did not go abroad. It will also imply that they were busy with their own business project and hence did not take up jobs. Both the statements showing the reason for not filing the written statement as also for not appearing in Court are diametrically different.
17. The defendant has relied upon the Supreme Court judgment in the case of Ajay Bansal v. Arwp Mehta : AIR2007SC909 , to show that an application for setting aside the order passed under Order XXXVII, Rule 3 of the C.P.C can lie under Order XXXVII, Rule 4 thereof as an alternative to an appeal or any other permissible mode. The forum may be in the Court passing the order albeit taking into account the fact that it was passed as a final judgment or initially on the Summons for judgment and also upon considering the special circumstances on the facts of each case independently.
18. The defendant has also relied upon the judgment in the case of (P.N. Films v. Overseas Films 59 Bom. L.R. 406 regarding the bar of limitation which has no application in this case.
19. No special circumstances are shown by the defendant to set aside the judgment passed in the Suit.
Consequently the Notice of Motion is dismissed.