State Bank of Indore v. Triveni Plenty Engineering Ltd.

Mr.Cyrus Ardeshir with Ms.Deepali Bhalekar-Deshmukh i/by Bilawala & Co. for the Appellant. None for Respondent. CORAM : DR.S.RADHAKRISHNAN : DR.S.RADHAKRISHNAN &&& CORAM CORAM : DR.S.RADHAKRISHNAN ANOOP V. MOHTA, JJ. V. MOHTA, JJ. ANOOP ANOOP V. MOHTA, JJ. DATED : 24TH MARCH, 2008 : 24TH MARCH, 2008. DATED DATED : 24TH MARCH, 2008 P.C. P.C.P.C. . Heard the learned counsel for the Appellant. None appears for the Respondent, though served. The Affidavit of Service dated 7th February, 2008 of Mr.V.S.Kshirsagar, the Chief Manager proving substituted service by way of publication upon the Respondent, has already been filed.

2. By the above Appeal, the Appellant is challenging the Judgment and Order dated 16th June, 2006 passed by the learned Single Judge which reads as under:- ( 2 )

3. "Heard Learned Counsel for the plaintiff and defendant. The suit is for recovery of money. Though served, nearly 18 years ago, the defendant has not filed the written statement. In the circumstances, the averments made in the plaint are deemed to be accepted. The suit of the plaintiff is decreed under Order VIII Rule 10 of the Code of Civil Procedure in terms of prayer clause 15(a)."

3. The learned counsel appearing for the Appellant strongly relied on the judgment of the Hon’ble Supreme Balraj Taneja & anr. Vs. Sunil Madan & Anr. Court, Balraj Taneja & anr. Vs. Sunil Madan & Anr. Balraj Taneja & anr. Vs. Sunil Madan & Anr. (1999) 8 S.C.C. 396, 8 S.C.C. 396, wherein the Supreme Court has (1999) (1999) 8 S.C.C. 396, observed as under:- "27.

28. In view of the above, it is clear that the Court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit. Having regard to the provisions of Order 12, Rule 6; Order 5, Rule 8, specially Proviso thereto; as also Section 58 of the Evidence Act, this Court in Razia Begum’s case (AIR 1958 SC 886) (supra) observed as under (Para 9 of AIR): . " In this connection, our ( 3 ) attention was called to the provisions of R.6 of O.12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read alongwith R.5 of O.8 of the Code with particular reference to the proviso which is in these terms: "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." The proviso quoted above, is identical with the proviso to S.58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the Plaint, may have been admitted." . . . The Court further observed (at P.892, Para 9 of AIR):- . "Hence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of S. 42 of the Specific Relief Act, decides, in a given case; to insist upon clear proof of even admitted facts, the Court could not be said to have exceeded its judicial powers."

29. ( 4 ) As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8."

4. The learned counsel appearing for the Appellant ( 5 ) also brought to our notice observations of the Hon’ble Supreme Court in the above judgment, as under:-

40. 40A. .

41. There is yet another infirmity in the case which relates to the "judgment" passed by the Single Judge and upheld by the Division Bench. "Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment: . "shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision". It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. In an old case, namely, Nanhe V. Saiyad Tasadduq Husain, (1912) 15 Oudh Cases 78, it was held that passing of a mere decree was material irregularity within the meaning of Section 115 of the Code and that even if the judgment was passed on the basis of the admission made by the defendant, other requirements which go to constitute "judgment" should be complied with.

42. In Thippaiah V. Kuri Obaiah, ILR (1980) 2 Kant 1028, it was laid down ( 6 ) that the Court must state the grounds for its conclusion in the judgment and the judgment should be in conformity with the provisions of Section 2(9) of the Code of Civil Procedure. In Dineshwar Prasad Bakshi V. Parmeshwar Prasad Sinha, AIR 1989 Pat 139, it was held that the judgment pronounced under Order 8, Rule 10 must satisfy the requirements of "judgment" as defined in Section 2(9) of the Code. Learned Counsel for respondent No.1 contended that the provisions of Order 20, Rule 1(2) would apply only to contested cases as it is only in those cases that "the points for determination" as mentioned in this Rule will have to be indicated, and not in a case in which the written statement had not been filed by the defendants and the facts set out in the plaint are deemed to have been admitted. We do not agree. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8, Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved. An attempt was made to contend that the definition of judgment as set out in Section 2(9) of the Code would not be applicable to the judgment passed by the Delhi High Court in its original jurisdiction wherein the proceedings are regulated by the provisions of the Delhi High Court Act, 1966. It is contended that the word "judgment" used in the Delhi High Court Act, 1966 would not take

44. ( 7 ) its colour from the definition of "judgment" contained in Section 2(9) of the Code of Civil Procedure. We do not intend to enter into this controversy, fortunately as it is not contended that the Code of Civil Procedure does not apply, but we cannot refrain from expressing that even if it were so, the Delhi High Court is not absolved of its obligation to write a judgment as understood in common parlance. Even if the definition were not contained in Section 2(9) or the contents thereof were not indicated in Order 20, Rule 1(2), CPC, the judgment would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained." .

5. We have perused the record as well as the impugned judgment of the learned Single Judge dated 16th June,

2006. It is clear that the said Judgment and order does not contain concise statement of the case nor the points for determination or even the reasons for the decision. Under these circumstances, the aforesaid judgment and order of the learned Single Judge dated 16th June, 2006 cannot be sustained in law. Accordingly, the same stands set aside. The Appeal is ( 8 ) accordingly, allowed. The suit No.964 of 1987 is restored to file.

6. The amount of Rs.1,00,000/- (Rupees one lac only) which has been deposited in this Court at the time of admission of the above appeal, is allowed to be withdrawn by the Appellant alongwith the accrued interest, if any.

7. The learned counsel for the Appellant states that the Written statement is ready. The same be taken on record in the said Suit No.964 of 1987. Office is directed to place the same in the original Suit No.964 of 1987. (ANOOP V. MOHTA, J.) V. MOHTA, J.) (ANOOP (ANOOP V. MOHTA, J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)