Partly allowed

Offshore Industris Construction P.Ltd. v. Rosma Engineers and Constructions

Bombay HC12 Jul 2013NMS/1416/2010

Case brief

AI extract

What is this about?

Appeal against an ex parte order. Court set aside the ex parte order conditionally, requiring the appellant to deposit 50% of the decretal amount and pay costs, allowing them to file a written statement within four weeks. Suit to be transferred to City Civil Court upon compliance.

What did the court decide?

Ex parte order set aside on condition of depositing 50% of decretal amount and paying Rs.25,000 costs within four weeks to file written statement.

Offshore Industris Construction P.Ltd. Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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NMS1416.10

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

NOTICE OF MOTION NO. 1416 OF 2010 IN SUIT NO. 1266 OF 2003

¶6

M/s. Offshore Industrial Construction Pvt. Ltd.

¶7

Pvt. Ltd. ..... Plaintiffs VERSUS Rosma Engineering Construction ..... Defendants/ Applicants

¶8

Mr.C.K.Thomas, i/b. C.K.Thomas & Associates for the Applicants and for Defendants in Suit.

¶9

None for the Respondents and for Plaintiffs.

¶10

CORAM : R.D. DHANUKA, J.

¶11

DATED : 12^th JULY, 2013

¶12

P.C.

¶13

By this Notice of Motion filed by the defendants, defendants seek that exparte order passed by this court on 6^th January, 2010 be set aside.

¶14

It is the case of the defendants that defendants had also initiated proceedings against the plaintiffs herein in the Court of Civil Judge, Senior Division at Kutligi in the State of Karnataka for recovery of Rs.19,32,838/- which suit has been already decreed in favour of the defendants. It is submitted that on service of writ of summons on defendants, defendants had engaged an advocate who had filed his vakalatnama on 27^th June, 2007. The advocate on record however did not take any steps to defend the suit and also did not file any written statement though

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NMS1416.10

instructions were given by the defendants. The defendants have already made complaint against the said advocate before the Bar Council of Maharashtra and Goa for alleged professional misconduct on his part. The said complaint is pending. It is the case of the defendants that the said advocate had informed the defendants that the matter was pending till the date of ex-parte decree passed by this court on 6^th January, 2010. It is submitted that due to alleged negligence on the part of the advocate, the defendants should not suffer. Plaintiffs have filed affidavit in reply opposing this Notice of Motion. It is the case of the plaintiffs that the defendants were fully aware of the suit. The defendants were duly served with writ of summons on 21^st May 2007 and had failed to file written statement within 90 days from the date of service of writ of summons. It is submitted that even if the defendants had not been informed by their advocate as alleged by the defendants, they could have ascertain the status of the case from the High Court website.

¶19

None appeared for the plaintiffs when the matter was called out yesterday. Matter is placed today on board. None appeared for the plaintiffs even today.

¶20

On perusal of the affidavit in support of the Notice of Motion, it is revealed that the defendants have already filed complaint against the then advocate who was representing the defendants before the Bar Council of Maharashtra and Goa alleging professional misconduct on the part of the said advocate. The learned counsel appearing for the defendants submit that complaint is pending. The complaint has been made alleging negligence on the part of the said advocate for not filing written statement and not defending defendants' suit though vakalatnama was filed in his favour and requisite amount of fees was already paid.

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NMS1416.10

On perusal of the affidavit in support, I am of the view that case is made out by the defendants for remaining absent and for not filing written statement within 90 days from the date of service of writ of summons. Though the explanation rendered in affidavit in support and affidavit in rejoinder is not fully satisfactory, in view of defendants having filed complaint against the learned advocate in the Bar Council of Maharashtra and Goa and interest of justice would meet if an opportunity is given to the defendants to file written statement and ex-parte order passed by this court is set aside, however, on condition.

¶25

Notice of Motion is made absolute in terms of prayer (a) on the condition that defendants deposit 50% of the decreetal amount in this court within four weeks from today and also paying cost quantified at Rs.25,000/- to the plaintiffs payable within four weeks from today.

¶26

If written statement is filed by the defendants within four weeks, Office shall accept the same on proof of payment of cost by the defendants.

¶27

Office is directed to transfer this suit to the City Civil Court alongwith the amount if deposited by the defendants.

¶28

Notice of Motion is disposed of accordingly. If the amount as directed is not deposited or cost is not paid, Notice of Motion shall stand dismissed without further reference to Court.

Offshore Industris Construction P.Ltd. v. Rosma Engineers and Constructions

Case brief

What is this about?

What did the court decide?

Offshore Industris Construction P.Ltd. v. Rosma Engineers and Constructions

Case brief

What is this about?

What did the court decide?

What the court decided

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