In a Notice of Motion, the court dismissed an application by a defendant seeking to set aside an ex parte decree, clarifying the scope of Rules 89 and 90 regarding undefended suits and finding service of summons valid.
Application to set aside decree dismissed; costs of Rs. 25,000 awarded against the applicant's client.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
28-NMS1554-17-J.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1554 OF 2017
IN
SUIT NO. 241 OF 2010
Placido Thomas Aguiar…Plaintiff
Versus
Elizzabeth Lucy D’Souza & Ors…Defendants
Ms Saumya Brajmohan, with Shruti Maniar, i/b M/s. Solomon &
Co., for the Plaintiff.
Ms Yashoda Desai,with Mrs Prachi Mhatre, i/b M/s. Shiralkar &
Co., for Defendants Nos. 1A to 1C.
Mr Gauraj Shah, with Sanjay Dubey & Omar Khayam Shaikh, for
Defendant No. 1E/3, Applicants in Notice of Motion.
CORAM: G.S. PATEL, J DATED: 26th February 2018
PC:-
1.The application is by the original Defendant, Giles Herman
Pereira, who is also arrayed as Defendant No. 1E. The Notice of
Motion seeks to set aside what is described as an ex parte decree
dated 19th September 2015 (KR Shriram J).
2.The first ground is that this decree was passed without a
Notice of Motion for a judgment for want of Written Statement
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under Rule 90 of the Bombay High Court (Original Side) Rules.
This submission is based on my decision in Madhu Sushil Gupta v
M/s. VR Pictures.1 The submission misunderstands that decision and
completely overlooks the purport of Rules 89 and 90 of the Bombay
High Court (Original Side) Rules. These are to be found in Chapter
87 of the Bombay High Court (Original side) Rules. This is how
Rules 89 and 90 read:
“R. 89.In default of filing appearance or
vakalatnama and written statement, suit may be set
down on board as undefended.– If the Defendant
commits default in filing his appearance in person or a
vakalatnama and Written Statement as provided in rule 74,
the Judge in Chambers may, when the suit appears on
board for directions, direct that the suit be set down on
board for disposal as an undefended suit on the same day
or on such other day.
R. 90.Judgment for want of written statement.–
Application for judgment for want of Written Statement
shall be made by Notice of Motion, but no such Notice of
Motion shall be issued before the date on which the Writ of
Summons is returnable. On the filing of an affidavit of
service of the Notice of Motion, the suit shall be set down
on the daily board for the purpose of such application.”
3.It is true that there is now settled authority as set out in
Madhu Sushil Gupta that there can be no judgment for failure to
return a Written Statement, i.e., the Suit cannot be decreed on that
ground alone without a supporting Notice of Motion under Rule 90,
but Rule 89 falls in a different category. It speaks of a situation
1 Notice of Motion No. 456 of 2015 in Suit No. 1967 of 2009, decided on 14th December 2017.Page 2 of 7
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where there is a default in filing appearance in person or by a
vakalatnama and a default in filing a Written Statement as provided
under Rule 74. In that situation, when the Suit appears for
directions, the Judge in Chambers may direct that the Suit be set
down on board for disposal as an undefended suit on the same day
or on some other day.
4.Rule 74 says that in suits other than matrimonial and
summary suits the Writ of Summons must require the Defendant to
file an appearance in person or a vakalatnama and a Written
Statement in defence within twelve weeks from service of the Writ
of Summons and to serve a copy of the Written Statement on the
Plaintiff or his Advocate on record.
5.In this scheme, two things happen. Once service of the Writ
of Summons is established, but there is neither an appearance nor a
Written Statement, and in addition the suit appears on board for
directions, the Court may then direct that the suit be disposed of as
an undefended Suit. Rule 90 operates in a different sphere. It is in
one sense a stand-alone provision. It is an additional option given to
a plaintiff. It is not a limitation placed on Rule 89. Once the Writ of
Summons is served and no Written Statement is filed (which would
postulate a previous entering of appearance) then the plaintiff has
the option under Rule 90 of straightaway seeking a decree simply for
failure to file a Written Statement. For this, a Notice of Motion
must be filed. This is how the decision in Madhu Sushil Gupta has to
be understood. On the other hand, where there is either no
appearance or no written statement, and the suit appears for
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directions, under Rule 89, the Chamber Judge may set it down as an
undefended suit on that or some other day.
6.In the present case, it seems that the Applicant, Defendant
No. 1E/3 was recorded as having been served on 25th March 2013.
On 11th November 2013, he was said to have been represented
before the Prothonotary and Senior Master by one Advocate Yadav
who undertook to file his vakalatnama by 27th January 2014. The
order of the Prothonotary and Senior Master made it clear that if no
Written Statement was filed, the Suit against Defendant No. 1E/3
should be transferred to the list of undefended Suits. On 27th
January 2014, neither Defendant No. 1E/3 was present, nor had the
vakalatnama or Written Statement been filed. The Suit was
specifically transferred to the list of undefended Suits, that is to say
an order was passed under Rule 89 of the Bombay High Court
(Original Side) Rules. At no point did the Plaintiff seek to exercise
the option provided by Rule 90 demanding a judgment for want of
Written Statement. The Plaintiff waited till the suit was taken up as
an undefended suit and this was the decree that was ultimately
passed by KR Shriram J on 19th September 2014.
7.This Judgment and Decree is a careful and elaborate one. It
notes the evidence. It notes the pleadings. It notes briefly the
relevant facts and the claim of the Plaintiff. It notes that the
Defendants who have not filed their Written Statements are not
present as against those who were present. Defendant No. 1E/3 was
even then noted to be in illegal occupation. The mere fact that this
judgment notes that no Written Statement is filed does not put it
within the meaning of Rule 90 at all. If that was so then Rule 89
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would have no meaning or effect and every judgment rendered
under Rule 89 after the Suit was transferred to the list of
undefended Suits would be vulnerable for not having a Notice of
Motion. This not is not the purpose or ambit of Rule 90 at all.
8.It is moreover clear that even if Defendant No. 1E/3 had not
filed a Written Statement he was nonetheless entitled to cross-
examine the Plaintiff. At best, arguably, he would not have been able
to put up an affirmative case to the Plaintiff for want of any
supporting pleading. He could, however, confront the Plaintiff and
Plaintiff’s witness. I notice from the Judgment and Order of KR
Shriram J that the Plaintiff’s witness was in fact present as PW1.
Paragraphs 4 and 8 make it clear that none wished to cross-examine
him. Thus, the opportunity to cross-examine was offered but not
availed of. Again this puts up squarely in the frame of Rule 89 and
not Rule 90 of the Bombay High Court (Original Side) Rules.
9.Faced with this, Mr Shah is compelled to fall back on what I
can only describe as an argument of utter desperation. His client is
not present in Court. His son is. Mr Shah is now forced to argue that
the Writ of Summons was never served. There are very many
difficulties with this. Page 231 which is part of the Sheriff’s Service
Report notes service on the Applicant. Defendant No. 1E was
pointed out by one Mangesh More, Clerk of the Plaintiff’s
Advocate. Now Mr Shah’s instructions are to state that his client
did not know Mangesh More. This does not mean that Mangesh
More did not know him. More curiously, what this argument wholly
overlooks is the signature of Defendant No. 3/1E on the docket of
the summons at page 233, i.e. after page 232, where in the bottom
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left hand next to the notarial stamp there is a signature of Defendant
No. 1E/3 with a handwritten endorsement dated 10th July 2013.
This signature exactly matches with the signature on the Affidavit in
Support of this particular Notice of Motion. Indeed it would seem
that this is the second attempt of service because the Prothonotary’s
Office noted that the Writ of Summons was served about four
months earlier on 25th March 2013 (page 203).
10.This is not all. There is a detailed joint Affidavit of one KK
Nayak, bailiff, and Mr Mangesh More at pages 214-218 which makes
it clear that service was in fact effected on 10th July 2013, consistent
with the docket endorsement.
11.There is a previous Affidavit of one RJ Tiwari at page 177
which shows that attempts to serve Defendant No. 3 resulted in the
packet being returned unclaimed. We have an even earlier Affidavit
of Sudhir Bhowad from pages 167 onwards. This makes for the most
interesting reading. Apart from the fact that Defendant No. 3 could
not be served at his address, this Affidavit says that this gentleman,
a clerk with the Plaintiff’s Advocate, went to the other address at
34-C Chimbai Road, Bandra 400 050. There, he met Defendant No.
3’s wife, who spoke to Defendant No. 3 on the telephone, and on his
instructions refused to accept the service documents and writ of
summons. Defendant No. 2 in the meanwhile arrived. Then it is
stated that both Defendant No. 2 and Defendant No. 3 refused to
accept service. A third and final attempt was made on 12th February
2010 at 3.50 p.m. The Son of Defendant No. 3 was present (the
gentleman I am told is instructing Mr Gauraj Shah in Court today).
He said then that he had been instructed not to accept any
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documents. The Clerk left two sets at the Chimbai Road address as
both persons refused them.
12.The Applicant now argues is this that all these records must
be wiped out or treated as being false and fabricated. He relies on
Rule 84 to say that there is no proof of service as required by the
Rules and, therefore, the Decree should be set aside. A mere
dishonest application is hard to believe. This Rule has no application
at all when the Defendant himself has signed in acknowledgement of
service on the docket of a paper or filed in Court.
13.What Mr Shah is now instructed to say that not just KR
Shriram J’s order but every other document including the
Prothonotary and Senior Master’s order, all Affidavits and all
endorsements must be set at naught and must be regarded as
fabrications of Court records only because this Defendant says so. In
paragraph 36 of his Affidavit in Support, this Defendant makes a
statement that he has not received the Writ of Summons, the plaint
or the amended plaint at any point of time. This statement is
demonstrably false in view of his signatures on the summons to
answer plaint, a document annexed to the Affidavit in Support of
this Notice of Motion.
14.The Notice of Motion is completely frivolous, mischievous
and motivated. It is dismissed. There will be an order of costs
against the Applicant in the sum of Rs. 25,000/-.
(G. S. PATEL, J)
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3 issues framed by the court
Whether a decree passed as an undefended suit under Rule 89 Bombay High Court Rules can be set aside due to lack of a Notice of Motion under Rule 90.
Whether there was a valid service of the Writ of Summons on the applicant.
Whether the application to set aside the decree was motivated and frivolous.
Colour shows how this judgement treated each authority
Madhu Sushil Gupta v M/s. VR PicturesExplained¶20
Madhu Sushil Gupta v M/s. VR Pictures
Giles Herman Pereira
Placido Thomas Aguiar
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court