Allowed

Alpin C-Operative Housing Soc.Ltd v. Mrs Vandana Kaluram Avhale and 2 Ors.

Bombay HC5 Feb 2020NMS/2265/2016

Case brief

AI extract

What is this about?

A Notice of Motion sought to set aside an ex-parte decree. The court examined Rule 90 compliance and sufficient cause for non-appearance involving parallel litigation on the same subject matter. Finding sufficient cause due to ongoing proceedings in lower courts, the court allowed the motion and restored the suit.

What did the court decide?

Ex-parte decree set aside; suit restored to file; defendants permitted to file written statement in one month; contempt petition disposed of; status quo maintained.

Alpin C-Operative Housing Soc.Ltd Vs Mrs Vandana Kaluram… — Property and Title | Bombay HC (2020)

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

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NOTICE OF MOTION NO.2265 OF 2016

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WITH CONTEMPT PETITION NO.34 OF 2018 IN

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SUIT NO.1643 OF 2008

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Vandana Kaluram Avhale and Others ...Applicants In the matter between Alpine Co-Operative Housing Soc. Ltd. ...Plaintiff vs. Vandana Kaluram Avhale and Others ...Defendants

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Ms. K.C. Nichani, for the Applicants Mr. Suneet Gupta, for the Defendant Nos. 1 and 2. Mr. Gajanan Surve, Section Offcer, Court Receiver present.

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CORAM : N. J. JAMADAR DATE : FEBRUARY 05, 2020

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ORAL ORDER:

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. This Notice of Motion is taken out by the Defendants to set aside the ex-parte decree passed against the Defendants on

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21^st April, 2016 and for afresh hearing of the Suit after providing an opportunity to the Defendants to fle written

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statement.

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The Suit was listed before the Court on 21^st April, 2016. This Court noted that the Defendant No. 3 who was impleaded

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in the capacity of Power of Attorney of M/s. Giriraj Associates was not a necessary party. The Court further noted that the Suit as against Defendant Nos. 1 and 2/ the Applicants in Notice of Motion, has been directed to be heard as an undefended Suit pursuant to the order dated 16^th February, 2010 passed by the Prothonotary and Senior Master. This Court further noted that none appeared for Defendant Nos. 1 and 2 nor there was a written statement on behalf of Defendant Nos. 1 and 2.

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After adverting to the provisions contained in Rule 5 of Order VIII of the Code of Civil Procedure, 1908 (the Code), this Court was persuaded to pass decree against the Defendant Nos. 1 and 2 in terms of prayer clause (a) as the Court was of the view that the Court was within its rights to pronounce the judgment on the basis of facts contained in the Plaint as there was no pleading on the part of the Defendants to controvert the same.

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The Defendant Nos. 1 and 2 have now moved this Court

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for setting aside the ex-parte decree. It is contended that there

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was a suppression of facts on behalf of the Plaintiff. There is a history of litigation which was not brought to the notice of the Court. The applicants herein had instituted Suits against the Defendants bearing No. 6808 of 1998 and 6809 of 1998 before the City Civil Court in respect of the subject matter of the instant Suit and the Court Receiver was appointed in the said Suits. The Plaintiff herein, the Defendant No. 2 in the said Suit, was fully aware of the proceedings, therein and, yet, in the instant Suit, without disclosing true facts, an ex-parte decree was obtained.

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The Plaintiff has resisted the prayer for restoration by fling an affdavit in reply. The Plaintiff asserts that the Notice of Motion is barred by limitation. The Plaintiff has adverted to the sequence of the proceedings between the parties till passing of the decree, which is sought to be set aside. The capacity of the constituted attorney who has fled the instant Notice of Motion is also called in question.

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Heard learned counsel Ms. K.C. Nichani, for the Plaintiff and Mr. Suneet Gupta, for Defendant Nos. 1 & 2 at some length.

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The learned counsel for the Applicant urged that the Plaintiff has obtained the ex-parte decree without disclosing the previous proceedings between the parties and the orders passed therein. Emphasis was laid on the fact that the order of appointment of the Court Receiver to take possession of the suit property was operative all along. The suits instituted by the Applicants came to be transferred to the City Civil Court, Bombay. The Applicants and the Plaintiff participated in the proceedings for the said suit. At no point of time, it was disclosed in the said suit that the Plaintiff herein has instituted the instant suit in respect of the very same subject matter. The learned counsel for the Applicants further submitted that the Plaintiff had not taken out any Notice of Motion when the matter was taken up for passing ex-parte decree. Even otherwise, according to the learned counsel for the Applicants, the Applicants have made out a suffcient cause for non appearance and thus the ex-parte decree is required to be set aside. In order to lend support to aforesaid submission, the learned counsel for the Applicants placed reliance on the judgments of this Court in the cases of Devi Ramchand

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Waswani vs. S.V. Bastikar¹ and Madhu Sushil Gupta vs. V.R. Pictures and Ors.²

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As against this, the learned counsel for the Plaintiff submitted that the Plaintiff has never suppressed the fact of institution of the suits by the Applicants. In fact, the Plaintiff had made specifc pleadings about the institution of the suits and appointment of the Court Receiver in respect of the suit property. The Applicants have not made out any cause much less suffcient for their non appearance on the date the suit came to be decreed ex-parte. It was further submitted that there is no dispute about the service of writ of summons on Defendant No. 1. The said fact is proved by the affdavit of the process server dated 24^th April, 2009 affrming that the writ of summons came to be duly served on Defendant Nos. 1 and 2 and is evidenced by the postal acknowledgments. Thus, the learned counsel urged that the there is no justifable reason to set aside the ex-parte decree.

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At the threshold, it will be appropriate to deal with two

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1 AIR 1968 Bom 57.

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2 2018(3) Mh.L.J.

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submissions. One, of law, raised by learned counsel for the Applicants. Another on facts refecting upon competence of Mr. Vijay Gone, the Attorney of Applicants, raised by the learned counsel for the Plaintiff.

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First, the submission of the learned counsel for the Applicants, based on the alleged non-adherence to the provisions contained in Rule 90 of the Bombay High Court (Original Side) Rules. The learned counsel for the Applicants urged that since the Plaintiff had not taken out Notice of Motion after the suits were transferred to the list of undefended suits, this Court could not have resorted to the provisions contained in Order VIII Rule 5 of the Code in view of the provisions contained in Rule 90 of the Rules. Reliance was sought to be placed on the judgment of this Court in the case of Madhu Gupta (supra).

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In the case of Madhu Gupta (supra), this Court, after adverting to the provisions of Order VIII Rule 5 of the Code and Rule 90 of the Rules and the pronouncements in the cases of Nikita Trading vs. Nirlon Synthetics Fibers & Chemicals Ltd.

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And Ors.³ ; Tardeo Properties Pvt. Ltd. vs. Bank of Baroda⁴ and Iridium India Telecom Ltd. vs. Motorola Inc.⁵ held that, read together, these three decisions tell us in the most unequivocal terms that on the Original Side of this Court, given the extant Rules, a Court cannot exercise jurisdiction under Order VIII of the Code to pass an ex parte decree. That can only be done on a Notice of Motion fled under Rule 90 of the Original Side Rules, and not otherwise.

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Rule 90 of the Bombay High Court Original Side Rules reads as under:

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“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 fling of an affdavit of service of the Notice of Motion, the suit shall be set down on the daily board for the purpose of such application.”

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On a plain reading of Rule 90, it becomes evident that the application for judgment for want of written statement is required to be made by Notice of Motion. The Court is further

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3 Order dated 29^th April, 2008 in Appeal No. 1136 of 2002.

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4 2007(5) BCR 557.

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5 (2005) 2 SCC 145.

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required to see that there is an affdavit of service of Notice of Motion. Thereafter, the Court is empowered to list the Suit for the purpose of the consideration of the application for ex-parte decree for want of written statement.

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The crucial question which arises, in the facts of the case, is whether Rule 90 comes into play ? The material on record indicates that the Prothonotary and Sr. Master in his order dated 16^th February, 2010 noted that Defendant Nos.1 and 2 did not turn up though served whereas Defendant No. 3 and his advocate were absent and hence the suit was ordered to be transferred to the list of undefended suits. It is nobody’s case that Defendant Nos. 1 and 2 had entered appearances after the service of the writ of summons. In this view of the matter, the provisions contained in Rule 90, which provide for a special procedure for taking out a Notice of Motion before passing judgment for want of written statement, simply do not have

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any application to the facts of the case. Thus, the challenge to the ex-parte decree on the count of non-compliance of the provisions of Rule 90 of the Original Side Rules is unacceptable.

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As regards the tenability of the Notice of Motion based on the competence of Mr. Vijay Gone, who took out the Notice of Motion in the capacity of constituted attorney of Defendant Nos. 1 and 2, it would be suffce to note that this Court in the order dated 14^th August, 2016 noted that the Defendant Nos. 1 and 2 appeared before the Court, pursuant to the directions, their identity was ascertained and the affdavits tendered by Defendant Nos. 1 and 2 were taken on record. Thus, the competence of Mr. Vijay Gone does not impinge upon the tenability of the Notice of Motion as Defendant Nos. 1 and 2 have sworn affdavits in support of the prayer made in the Notice of Motion.

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Before adverting to deal with the rival submissions on the merits of the matter, it may be apposite to note the sequence of the proceedings between the parties. The Applicant had instituted Suit Nos. 6808 of 1998 and 6809 of 1998 before the City Civil Court, Greater Mumbai with the assertions that M/s. Giriraj Associates, who was impleaded as Defendant No. 3, in the instant Suit had obtained a loan of Rs. 3,50,000/- from Applicant No. 1 and Rs. 7 lacs from Applicant No. 2 and

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executed a mortgage by way of conditional sale on 7^th February, 1992. It was, inter alia, agreed between the Applicants and M/s. Giriraj Associate that the said loan amounts would be repaid within a period of fve years along with interest @ 24% p.a. In the event of default to repay the mortgaged money, the Applicant No. 1 would become the owner of Flat No. 2 and the Applicant No. 2 would become owner of Flat Nos. 9 and 10 in the building known as Alpine then being developed by M/s. Giriraj Associates. However, M/s. Giriraj Associates committed default in repayment of the said amount. The possession of the said fats was handed over to the then constituted attorney of the Applicants. In the meanwhile, the offce bearers of the Plaintiff, impleaded as Defendant No. 2 in the said suit, attempted to cause obstruction to the peaceful possession of the Applicants over the suit fats. Hence, the Applicants instituted abovenamed suits seeking, inter alia, following reliefs:

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(a) That this Court be pleased to order and direct Defendant No. 1 to enter into regular Agreement for sale in respect of Flat No. 2 in favour of the Plaintiff and confrmed that Plaintiffs are owners thereof and to register the said documents with the Sub-Register of Assurances.

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(b) That this Court be pleased to order and direct Defendant No. 1 to confrm possession of Plaintiff of the Suit fats as per provisions of the Maharashtra Ownership Flat Act by removing the locks put by Defendant No. 1 and/or by Defendant No. 2 on the suit fat.

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(c) That this Court be pleased to order and direct Defendant No. 1 to call upon Defendant No. 2 to recognize the Plaintiff as owner of the said fat and to accept the Plaintiff as member of Defendant No. 2 society and recover from them regular maintenance charges and other charges from month to month.

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By an order dated 15^th December, 1998 the Court Receiver came to be appointed by City Civil Court, Bombay. The Court Receiver took possession of the suit fats on 28^th December, 1998. By an order dated 16^th April, 1999 the Plaint in above suits came to be returned by City Civil Court for fling the same in appropriate Court. The ad-interim order of appointment of Court Receiver was, however, continued.

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On presentment in this Court, the suits were re-numbered as Suit No. 2847 of 2000 and 2848 of 2000. The order of appointment of Court Receiver came to be continued by this Court by order dated 17^th July, 2002 passed in Notice of Motion No. 821 of 2002 in Suit No. 2848 of 2000 and Notice of Motion No. 822 of 2002 in Suit No. 2847 of 2000. To complete the

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narration of the facts in respect of the proceedings instituted at the instance of the Applicants, it would be necessary to note that the Suit No. 2847 of 2000 and No. 2848 of 2000, which were on the fle of this Court, were again transferred to City Civil Court, Greater Mumbai and re-numbered as Suit Nos. 8574 of 2000 and 8575 of 2000. The Applicants claim that issues were framed in the said suits on 16^th March, 2016.

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The Plaintiff herein instituted the instant suit being Suit No. 1643 of 2008 on 29^th April, 2008. The Plaintiff averred that the Plaintiff Society came to be formed by the purchasers of the rest of the fats in the Alpine Building. The Plaintiff society carried out extensive repairs to the Alpine Building in the year 1999, 2003 and 2005. In addition to the expenses of repairs, the members of the society were constrained to incur expenses on the construction of the building. The Plaintiff has continued to bear the outgoing and maintenance charges in respect of the suit fats. The Plaintiff has acquired the ownership over the suit fats as the Plaintiff has thus incurred expenses of Rs.28,33,936/-. Alternatively, the Plaintiff has claimed a declaration that the Plaintiff society has a charge

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over the suit fats for the sum of Rs. 28,33,936/-. Thus, the Plaintiff sought the following reliefs:

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a] For a declaration that the Plaintiffs are the owners of Flat Nos. 2, 9 and 10 of Alpine Building situated on Survey No. 62, Hissa No.3, CTS No. 406, Amboli Village, Andheri (w), Mumbai 400 058 and that the Defendants have no right, title or interest therein.

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In alternative to prayer (a)

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b] For a declaration that Flat Nos. 2, 9 and 10 of Alpine building situated on Survey No. 62, Hissa No. 3, CTS No. 406, Amboli Village, Andheri (w), Mumbai 400 058 are charged for a sum of Rs. 28,33,936/- due to the Plaintiffs in respect thereof.

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From the perusal of the averments in the Plaints in the Suits instituted by the Applicants and the Plaintiff herein, it becomes evident that the Applicants claim ownership over the suit fats on the basis of mortgage by conditional sale, executed in their favour by M/s. Giriraj Associates. The Plaintiff, on the contrary, claims ownership over the suit fats on the ground that the society incurred expenses for the completion of the building, for the repairs of the suit fats, the maintenance thereof and the outgoings therefor.

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20. This Court by the ex-parte order passed the decree in

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terms of the prayer clause (a) extracted above. The prayer for

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setting aside the aforesaid ex-parte decree is required to be appreciated in the backdrop of the aforesaid history of litigation and the facts which emerge therefrom. In view of the provisions contained in the order IX Rule 13 of the Code, a exparte decree passed against the Defendant can be set aside, if the Defendant satisfes the Court that the summons was not duly served on the Defendant, or the Defendant was prevented by suffcient cause from appearing when the suit was called on for hearing.

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In the case at hand, though a faint attempt was made on behalf of the Applicants to assert that the summons was not served upon the Applicants, yet in the face of the record, especially the affdavit of service, accompanied by the postal acknowledgments evidencing the service of writ of summons on the Applicants, the claim that the summons was not duly served does not deserve countenance.

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The matter thus revolves around the aspect as to whether the Applicants were prevented by a suffcient cause from appearing before the Court when the suit was called on for

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hearing. The term “suffcient cause” when used by the legislature to empower a Court or Tribunal to relieve a party of the consequences of default or inaction often receives liberal construction. The word “suffcient” ordinarily implies a cause which is not malafde or tainted with negligence. The overriding object of doing substantial justice informs the decision as to whether a party has made out a suffcient cause or not. In a given situation in order to prevent perpetuation of an unjust consequence the term suffcient cause is given a liberal consideration.

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In the case at hand, Applicants have sworn affdavits, albeit pursuant to the direction of this Court, wherein the circumstances in which they found themselves on account of familial reasons are adverted to. The fact that the Applicants were under the impression that their constituted attorney was prosecuting the remedies in the City Civil Court and they were

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unaware of the proceedings of the instant suit in the High Court is sought to be asserted. Indeed, in the affdavit in support of the Notice of Motion, the Applicants have laid more emphasis on the alleged suppression of the proceedings

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pending between the parties before the City Civil Court. The Applicants have claimed that the Applicants did not receive any notice or intimation in respect of the present suit despite the parties regularly appearing before the City Civil Court in Suit No. 8574 and 8573 of 2000.

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The aforesaid material is required to be appreciated in the backdrop of the fact that two parallel proceedings were in respect of one and the same subject matter. In the suits before the City Civil Court, which were, in fact, instituted prior in point of time, the Applicants claimed ownership over the suit fats. Their claim of ownership is based upon the deed of mortgage. In contrast, the claim of ownership of the Plaintiff is based on the expenses allegedly incurred by the Plaintiff for development of the building, repairs of the suit fats, maintenance and outgoing etc. The Plaintiff did not claim ownership on the basis of of any instrument or by operation of law.

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In this backdrop, as the suits were instituted by the

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Applicants, prior in point of time, the matter in issue i.e.

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ownership of the suit fats was, thus, directly and substantially in issue in the previous suits, instituted by the Applicants and the parties to the suits in the City Civil Court and the suit in hand were also same, the question of the applicability of section 10 of the Code would have had a bearing upon the instant suit.

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It is the claim of the applicants that issues were settled in the suits before the City Civil Court on 16^th March 2016, a month before ex-parte decree came to be passed in the instant suit. Thus, the assertion of the applicants that they were prosecuting the remedies before the City Civil Court and were unaware of the instant suit and the developments therein cannot be said to be unworthy of credence. In the circumstances, there does not appear to be a non-participation in the instant suit, by design. The claim of the applicants appears nearer to the truth. From this standpoint, the delay in taking out instant notice of motion to set aside ex-parte decree appears to be satisfactorily accounted for. In the totality of the circumstances, the dictates of justice commands that the applicants deserve an opportunity to contest the suit on merit

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lest the fate of the previously instituted suits, where the ownership of the suit fats is directly and substantially in issue, gets sealed.

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Viewed through this prism, the Applicants can be said to have made out a suffcient cause for non appearance when the ex-parte decree was passed by this Court.

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In the aforesaid view of the matter, the Notice of Motion deserves to be allowed. Hence, the following order:

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ORDER

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(i) The ex-parte decree passed by this Court in Suit No. 1643 of 2008 stands set aside.

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(ii) The Suit No. 1643 of 2008 is restored to the fle.

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(iii) The Defendant Nos. 1 and 2 are permitted to fle the written statement(s) within a period of one month from the date of uploading of this order.

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(iv) In view of disposal of the Notice of Motion No. 2265 of 2016 and restoration of the Suit No. 1643 of 2008 to the fle, the Contempt Petition No. 34 of 2018 does not deserve to be entertained and the Contempt Petition stands disposed of.

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(v) On 4^th August, 2016 this Court had accepted the statement made on behalf of the Plaintiffs that the Plaintiffs will maintain the status-quo as regard the suit fats. The Plaintiffs are hereby directed to maintain status-quo as regard the suit fats till further orders.

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The Suit No. 1643 of 2008 be listed as per CMIS date.

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Alpin C-Operative Housing Soc.Ltd v. Mrs Vandana Kaluram Avhale and 2 Ors.

Case brief

What is this about?

What did the court decide?

Alpin C-Operative Housing Soc.Ltd v. Mrs Vandana Kaluram Avhale and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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