Partly allowed

Techno Center v. Tutor India Ltd.

Gujarat HC9 Sept 2014FA/48/2014

Case brief

AI extract

What is this about?

The High Court remanded a suit for a fresh trial after the lower court passed a decree in the absence of the appellants and their advocate. The Court imposed conditions requiring appellants to deposit security and furnish a personal bond while dismissing further factual debate on merits.

What did the court decide?

Impugned decree quashed; suit remanded for fresh trial within 12 months; appellants mandated to deposit Rs.5 Lacs on fixed deposit and furnish personal bond for remaining amount.

Techno Center Vs Tutor India Ltd. — Execution and Attachment | Gujarat HC (2014)

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C/FA/48/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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FIRST APPEAL NO. 48 of 2014 With

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CIVIL APPLICATION NO. 133 of 2014 In FIRST APPEAL NO. 48 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G.SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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TECHNO CENTER & 2....Appellant(s)

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Versus

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TUTOR INDIA LTD....Defendant(s)

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Appearance:

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MR VIJAY PATEL FOR HL PATEL ADVOCATES, ADVOCATE for the Appellant(s) No. 1 - 3

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MR NIRAV C SANGHAVI, ADVOCATE for the Defendant(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 09/09/2014

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ORAL JUDGMENT

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Page 1 of 4

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C/FA/48/2014 JUDGMENT

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Heard learned advocate Mr.Vijay Patel for H.L.Patel Advocates for the appellants and learned advocate Mr.Nirav Sanghavi for respondent.

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Appellants are original defendants, whereas respondent is original plaintiff in Special Civil Suit no.13 of 2004, which is decreed by the Principal Civil Judge of Himmatnagar by its judgment and order dated 17.8.2011. By such impugned judgment, a decree of Rs.14,36,142/- with 15% interest thereon has been granted in favour of the plaintiff. However, if we peruse the judgment and rojkam produced by the appellants, it becomes clear that though appellants have engaged an advocate, the learned advocate for the appellants – defendants have failed to appear before the Court on several dates and thereby to defend the appellants or atleast to prove his case qua quantum of the amount under dispute. The appellants have also produced an application and order below Exh.34 in the same civil suit, whereby trial Court has exhibited several documents without evidence on record, but relying upon provision of Order 12 Rule 2A of Civil Procedure Code wherein also it is recorded that advocate for the defendants has neither filed any reply nor any oral arguments at the time of hearing. Therefore, learned advocate Mr.Patel for the appellants has submitted that though they are not pressing or alleging against the advocate in his personal capacity, it is evident from record that the advocate engaged by them has failed to defend them properly before the trial Court, which resulted into full decree as prayed for by the plaintiff in the suit without considering the factual details that whether suit amount is due or not and that whether interest @ 15% was agreed upon or not. On perusal of the plaint, it becomes clear that there is no pleading regarding rate of interest being contracted as 15% between the parties i.e. in default of payment, interest is to be paid @ 15% p.a.

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In any case, considering the facts and circumstances that the defendants could not remain present during active hearing because of non intimation and absence of their advocate before the trial Court, it

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Page 2 of 4

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C/FA/48/2014 JUDGMENT

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becomes clear and certain that in absence of the defendants and their advocate, the Court has decreed the suit as prayed for. Therefore, even after admission of such appeal, ultimately, at the stage of final hearing, if such facts are taken into consideration, then, there could not be any option, but to remand the matter back to the trial Court for deciding it afresh after providing ample opportunity to the appellants – defendants to defend the suit in accordance with law. Though, it can be said that once defendants are served, but remained absent, there is no need to give him a second chance, it would be appropriate in such cases to allow the ligitant to defend the litigation when order was passed ex parte.

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At the same time, considering the submission by the respondent – plaintiff, if at all appellants – defendants are using delaying tactics in such litigation, same can be taken care of by some directions to confirm the recovery and thereby execution of the final decree that may be ultimately passed in favour of the plaintiffs. Such direction would in fact help the plaintiff to realise the decretal amount without filing any execution proceeding. Therefore, it would be appropriate to dispose of the First Appeal at such admission stage by remanding the suit to the trial Court in following manner:-

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a. The impugned judgment and decree dated 17.8.2011 by Principal Senior Civil Judge, Himmatnagar in Special Civil Suit no.13 of 2004 is hereby quash and set-aside on condition that appellants shall deposit Rs.5 Lacs before the trial Court within four weeks’. Such amount shall be invested in fixed deposit for 15 months and such amount with accrued interest shall be subject to the result of the suit.

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b. Appellants have also to furnish security in the form of personal bond for remaining decretal amount confirming that in case of decree against him, he shall deposit the remaining amount before the trial Court within four weeks’ after the completion of appeal period.

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c. The trial Court shall decide the suit within 12 months after receipt

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Page 3 of 4

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C/FA/48/2014 JUDGMENT

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of writ of such judgment and after giving opportunity to both the sides to lead their evidence. For the purpose, since both the parties are present before the Court, they are directed to file their appearance before the trail Court within four weeks’ from today without fail and in that case, trial Court may not issue fresh notice to them. For the purpose, when appellants deposit the amount as aforesaid before the trial Court, they shall make necessary arrangement for appearance in the suit before the trial Court and to defend the suit.

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Needless to say that, this Court has not entered into the factual details or merits of the case at this stage and, therefore, trial Court shall decide the suit purely in accordance with law and evidence adduced before it i.e. without being influenced by the impugned judgment as well as present order.

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The First Appeal is partly allowed as aforesaid. Rule is made absolute to that extent.

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In view of order passed in First Appeal, Civil Application does not survive and stands disposed of.

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(S.G.SHAH, J.)

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binoy

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Page 4 of 4

Techno Center v. Tutor India Ltd.

Case brief

What is this about?

What did the court decide?

Techno Center v. Tutor India Ltd.

Case brief

What is this about?

What did the court decide?

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