Rabi Sankar Sharma Vs. State Bank of India and anr.

Rabi Sankar Sharma vs State Bank of India and anr.

Type Court Judgment Court Orissa Decided Mar 28, 2008

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Citation: sooperkanoon.com/528249
Court: Orissa High Court
Judge: S.R. Singharavelu, J.
Decided On: Mar 28, 2008
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Civil

Parties & Advocates

Appellant / Petitioner

Rabi Sankar Sharma

Respondent

State Bank of India and anr.

Legal References

Reported In: 2008(I)OLR683

Excerpt

.....deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is in these circumstances, we have to think of the plight of any person like the defendant no......no. 10/90.2. t.m.s. no. 10/90 filed by the respondent no. 1 - plaintiff is for recovery of rs. 3,33,819.95.3. the learned trial judge dismissed the application filed by the defendant no. 1 under order 9 rule 13 c.p.c. taking into consideration the fact that the said defendant had not proved that he had got knowledge of the decree for the first time only on a date prior to the date of filing of the application under order 9, rule 13, c.p.c. in this connection, the trial judge burdens the petitioner-defendant no. 1 to say that the signature found in the summons said to have been served by the process server, who was examined in the court by the respondent no. 1/plaintiff, does not belong to him.4. when a person stoutly denies the signature in the summons by saying that it does not belong to him, he cannot be further burdened to say as to whose signature it is. in other words, once defendant no. 1 denied his signature on the notice, it was for the plaintiff to prove the same. the defendant no. 2 as opposite party no. 2 cannot prove the existence of a negative thought.5. the respondent-plaintiff has proceeded with by examining the process server who could only say that he had served the summons and got the signature of defendant no. 1. if it is found that he had not served the notice upon the defendant no. 1, then he would be out of job. in this context, no process server will come to say against his own interest.6. once there is a dispute regarding the service of summons by the process server, one cannot solely and safely rely upon his evidence and come to the conclusion that he had actually served the summons upon the defendant no. 1. therefore, it was imperative on the part of the respondent no. 1/plaintiff to have examined some other person who had witnessed the service made by the process server upon the defendant no. 1. that has not been done in this case.7. as mentioned earlier, no credibility would be attached in this context to the evidence of the process.....

Full Judgment

S.R. Singharavelu, J.

1. This Miscellaneous Appeal arises out of the order dated 11.10.1999 passed by the Civil Judge (Senior Division), Kuchinda in Misc. Case No. 5 of 1997, filed by the appellant-defendant No. 1 - petitioner under Order 9 Rule 13 C.P.C. to set aside the ex parte decree dated 12.5.1992 passed in T.M.S. No. 10/90.

2. T.M.S. No. 10/90 filed by the respondent No. 1 - plaintiff is for recovery of Rs. 3,33,819.95.

3. The learned trial Judge dismissed the application filed by the defendant No. 1 under Order 9 Rule 13 C.P.C. taking into consideration the fact that the said defendant had not proved that he had got knowledge of the decree for the first time only on a date prior to the date of filing of the application under Order 9, Rule 13, C.P.C. In this connection, the trial Judge burdens the petitioner-defendant No. 1 to say that the signature found in the summons said to have been served by the process server, who was examined in the Court by the respondent No. 1/plaintiff, does not belong to him.

4. When a person stoutly denies the signature in the summons by saying that it does not belong to him, he cannot be further burdened to say as to whose signature it is. In other words, once defendant No. 1 denied his signature on the notice, it was for the plaintiff to prove the same. The defendant No. 2 as opposite party No. 2 cannot prove the existence of a negative thought.

5. The respondent-plaintiff has proceeded with by examining the process server who could only say that he had served the summons and got the signature of defendant No. 1. If it is found that he had not served the notice upon the defendant No. 1, then he would be out of job. In this context, no process server will come to say against his own interest.

6. Once there is a dispute regarding the service of summons by the process server, one cannot solely and safely rely upon his evidence and come to the conclusion that he had actually served the summons upon the defendant No. 1. Therefore, it was imperative on the part of the respondent No. 1/plaintiff to have examined some other person who had witnessed the service made by the process server upon the defendant No. 1. That has not been done in this case.

7. As mentioned earlier, no credibility would be attached in this context to the evidence of the process server even though he is an officer of the Court. It is also a matter to note that there is no witness examined for having witnessed the service made upon the defendant No. 1 by the said process server. Local villagers have not been examined. Therefore, still it is an unanswered question as to whether the defendant No. 1 was served with the summons at all. It is in these circumstances, we have to think of the plight of any person like the defendant No. 1 who would suffer out of the decree which is more than Rs. 3 lakhs without even being given an opportunity of being heard, Necessarily that opportunity is to be given to him.

8. However, the matter is pending for long time. The loan was said to have been borrowed in 1981. In the circumstances, in the interest of justice, defendant No. 1 is to be directed to deposit 50% of the decretal amount, besides paying cost of Rs. 2,000/- (Rupees two thousand) to the respondent No. 1-plaintifff.

9. Both the payments shall be made within a period of one month and in default, the Misc. Appeal will be dismissed without making any further order. The amount of Rs. 3 lakhs be deposited in the trial Court and the amount of Rs. 2,000/- (Rupees two thousand) will be handed over to the learned Counsel for respondent No. 1-plaintiff within the stipulated time

10. The Misc. Appeal is accordingly disposed of. The L.C.R. be sent back.

Same Court & Year Orissa · 2008 Same Parties Rabi Sankar Sharma vs State Bank of India and anr. Same Subject Civil Same Judge S.R. Singharavelu, J.

Civil