Dhariwal Industtries Limited, Vs 1. Ameya Impex Company through Its Partner, Vishwas Dixit and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
FIRST APPEAL NO.332 OF 2011

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Dhariwal Industries Limited...Appellant
vs.
Ameya Impex Company & others...Respondents

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Mr.Vishwajeet Sawant a/w Ms Rajalakshmy i/b ALMT
Legal for the appellant
None for the respondents

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CORAM : A.S.OKA, &
 S.S.SHINDE, JJ.
 DATE : NOVEMBER 23,2012

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ORAL JUDGMENT:

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1Heard the learned counsel for the appellant.
On 9th April 2012, this Court issued notice for
final disposal. Office remark showed that notice was
served on a male member of the family of partner of
the respondents. On 9th October 2012, as none
appeared for the respondents, the appellant was
permitted to serve a fresh private notice to the
respondents. The learned counsel for the appellant
pointed out that a fresh private notice for final
disposal was attempted to be served. He pointed out
that notice was attempted to be served on first
respondent on two occasions. On first occasion he
accepted the service but declined to acknowledge the
notice on the ground that he wants to consult his
lawyer. On the second occasion i.e on 2nd November
2012, he accepted the letter for himself and on
behalf of the second respondent. Affidavit of

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service to that effect has been filed by the
appellant.

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2Today as none appears for the respondents, we
have taken up the appeal for final hearing. The
appeal is by an unsuccessful plaintiff. The
appellant filed a suit for recovery of sum of
Rs.3,80,78,777/- against the respondents. It is
alleged that the plaintiff is engaged in business of
manufacturing and selling throughout India Tobacco
products, packaged drinking water etc. It is
alleged that the respondents were acting as an Agent
of Kalyani Steels Limited at Pune. The said company
was exporting Iron Ore to its China based customer
at Hong Kong. It is alleged by the appellant that
the respondent represented that they needed
financial assistance as they had received an export
order for Iron Ore of 45,000 M.T. The respondents
agreed to do the ground work for export and agreed
to share profit with the appellant. Reliance is
placed on memorandum of understanding dated 2nd March
2004. It is pointed out that the respondents were
carrying on business in the name of M/s.Ameya Impex.
It is alleged that a sum of Rs.2,00,00,000/- was
paid by the appellant as contribution. It is
alleged that the respondents admitted their
liability. Thereafter, a demand notice was served
by the appellant calling upon the respondents to pay
a sum of Rs.2 crores with interest thereon. As the
said amount was not paid, a suit for recovery was
filed. Notwithstanding the service of summons, the
respondents did not cause appearance to be entered

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in the suit. Therefore, the suit proceeded ex-parte
against the respondents. It appears that the learned
Trial Judge called upon the appellant to prove the
case made out in the suit by leading evidence.
Accordingly, an affidavit in lieu of examination in
chief was filed by the Managing Director of the
appellant. The appellant produced certain documents.
The Trial Court dismissed the suit by impugned
Judgment and Decree on the ground that the
documents were not proved by the appellant.

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3The submission of the learned counsel for the
appellant is that as the respondents did not file
written statement, averments made in the plaint have
gone unchallenged and therefore, a decree ought to
have been passed in accordance with Rule 5 of Order
VIII of the Code of Civil Procedure,1908
(hereinafter referred to as the said Code). He
urged that in any event, a decree should have
followed in accordance with Rule 10 of Order VIII of
the said Code. Without prejudice to the said
submission, he urged out that an order of remand be
passed to the Trial Court so that the appellant can
take steps to prove the documents produced in
accordance with law.

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4The very fact that the appellant filed an
affidavit in lieu of examination in chief under Rule
4 of the Order XVIII of the said Code shows that
the Trial Court did not take recourse to rule 5 of
Order VIII of the said Code and called upon the
appellant to prove its case. The finding of the

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Trial Court in paragraphs 9 and 10 is that it was
incumbent on the parties to register the memorandum
of understanding in accordance with section 17 of
the Registration Act,1908. Prima facie, we are of
the view that memorandum did not require
registration. Moreover, in paragraph 10, the
learned Trial Judge has observed that though 18
documents were filed, the same have not been proved.

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5Considering the findings in paragraphs 9 and
10, we are of the view that the suit will have to be
remanded to the Trial Court with permission to the
appellant to lead additional evidence. The
plaintiff will have to satisfy the Court that the
document of memorandum of understanding is not a
compulsory registrable document.

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6 Hence, we pass the following order :

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i) Impugned Judgment and Decree dated 23rd
September 2010 is quashed and set aside and
Special Civil Suit no.1776 of 2008 is restored
to the file of the Trial Court.

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ii)The appellant is directed to appear before the
Trial Court on 17th December 2012 at 11.00 a.m.
The Trial Court shall thereafter fix a date to
enable the appellant to lead additional
evidence. The Trial Court shall issue notice of
the date fixed to the respondents.

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iii)The learned Trial Judge shall proceed to
decide the suit afresh as expeditiously as
possible and preferably within a period of six

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months from the date on which the appellant
appears before the said Court.

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iv)Appeal is partly allowed on above terms.

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v) The trial Court to act upon an authenticated

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copy of this Judgment and order.

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vi)Writ to be issued urgently.

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(S.S.SHINDE,J.)(A.S.OKA,J.)

Dhariwal Industtries Limited, v. 1. Ameya Impex Company through Its Partner, Vishwas Dixit and Anr.

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Dhariwal Industtries Limited, v. 1. Ameya Impex Company through Its Partner, Vishwas Dixit and Anr.

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