M/s.Apollo Tyres Ltd. v. M/s.Transport Corporation of India

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 23.01.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALO.S.A. NO. 281 OF 2007ANDM.P. NO. 1 OF 2007M/s.Apollo Tyres Ltd.6th Floor, Charupushpam BuildingShanmugam RoadCochin 682 031 and having itsBranch Office inter alia atNo.5, Giri Road, Madras – 17... Appellant/Ist Defendant.- Vs -M/s.Transport Corporation of IndiaNo.3, Club House RoadMount Road, Madras... Respondent/Plaintiff.Appeal filed against the order dated 12th June, 2007, passed bylearned Judge in Application No.2309 of 2006 in C.S. No.1226 of 1993as stated therein.For Appellant: Mr. T.PoornamFor Respondent: Mr. R.ArumughamJUDGMENTS.J.MUKHOPADHAYA, J.This appeal has been preferred by the appellant, M/s.Apollo TyresLtd., who is the 1st defendant in the suit, against order dated 12thJune, 2007, passed by learned Judge in Application No.2309/06 in C.S.No.1226/93. The appellant/1st defendant preferred an application under OrderVII Rule 11 read with Section 151 of the Code of Civil Procedure todismiss the suit for non-prosecution, but learned Judge rejected suchapplication.2. The suit was preferred by the respondent, M/s.TransportCorporation of India, Madras, for a decree against the 1st defendantto pay the plaintiff a sum of Rs.44,38.576/= with interest at therate of 12% p.a., registered as C.S. No.1226/93 in the Original Sideof this Court. Judges summons were sent and number of times returned https://hcservices.ecourts.gov.in/hcservices/ and having ultimately served on the 1st defendant in 2006 and onappearance, the 1st defendant filed the aforesaid application underOrder VII Rule 11 read with Section 151 of the Code of CivilProcedure to dismiss the suit for non-prosecution.3. Counsel appearing on behalf of the appellant submitted thatthe suit was filed on 23rd July, 1993, specifically showing theaddress of the 1st defendant as that of registered office, but therespondent/plaintiff failed to take summons to the registered officeinspite of the fact that the process server returned the summons onnumber of occasions stating that the 1st defendant could not be foundat the address given in the summons, as the 1st defendant has vacated.In fact, no step was taken for about 13 years. As there isinordinate, inexplicable and inexcusable delay of 13 years inprosecuting the suit diligently and grave injustice and prejudicehave been caused to the 1st defendant, the suit should have beendismissed for non-prosecution.Learned counsel referred to the factual aspect to suggest themanner in which the plaintiff tried to drag the matter. It wassubmitted by learned counsel for the appellant that the plaintiff,while clearly mentioned that the registered office of the 1stdefendant is at 6th Floor, Shanmugam road, Cochin, Kerala 682032, asalso at No.45, Giri Road, .Madras-17, from the perusal of the Courtrecord it will be evident that the summons were sent to its addressat No.45, Giri Road, Madras-17 only. The first summons was returnedunserved on 18th Nov., 1994, followed by another summons, which werealso returned unserved on 23rd Jan., 1996, 16th July, 1996 and 11thDec., 1996. It was contended that all the time though the summonswere returned with note that the defendant had left the address, but,repeatedly, summons were sent to the said address. After December,1996, after about ten years, no step was taken till 13th Feb., 2006,when counsel for the plaintiff sought permission for private noticefor service on the 1st defendant, which was ultimately served.4. The grievance as made on behalf of the appellant is thatbecause of the callous attitude on the part of the plaintiff, whotried to delay and drag the matter, now the 1st defendant will not bein a position to trace the documentary evidence and may be in adisadvantageous position to produce its witnesses, many of theemployees as may have left the company in the meantime, who hadknowledge of occurrence of fire as took place in 1993. It wasfurther submitted that the 1st defendant being a company could get thedetails of the facts and information with regard to incident allegedto have taken place in 1993 only through its employees posted atMadras, many of whom may have left by this time. If the summonswould have been served as back as in 1993-94, according to counsel,the appellant could have atleast kept track of the employees, whowere posted on the relevant date at Chennai.5. Learned counsel appearing on behalf of therespondent/plaintiff submitted that no case is made out to dismissthe suit under Order VII Rule 11 or Section 151 of the Code of CivilProcedure. In fact, none of the clause of Order VII rule 11 could be https://hcservices.ecourts.gov.in/hcservices/ invoked in the present case.On the other hand, according to counsel for the appellant, ifpower is not there under Order VII rule 11, the Court has inherentjurisdiction u/s 151 of the Code of Civil Procedure to notice thedelaying attitude of the plaintiff and to dismiss the suit for non-prosecution. Reliance was placed on Supreme Court decision inShipping Corporation of India Ltd. - Vs – Machado Brothers reportedin AIR 2004 SC 2093, wherein Supreme Court explained the inherentpower of the Court u/s 151 of the Code of Civil Procedure.6. We have heard the parties, noticed the record and thejudgments as referred to by the counsel for the parties.7. Order VII Rule 11 empowers the Court to reject a plaint underthe following circumstances :-"11. Rejection of plaint.- The plaint shall berejected in the following cases :-(a) where it does not disclose a cause of action;(b) where the relief claimed is undervalued, and theplaintiff, on being required by the Court to correctthe valuation within a time to be fixed by the Court,fails to do so;(c) where the relief claimed is properly valued butthe plaint is written upon paper insufficientlystamped, and the plaintiff, on being required by theCourt to supply the requisite stamp-paper within atime to be fixed by the Court, fails to do so;(d) where the suit appears from the statement in theplaint to be barred by any law;(e) where it is not filed in duplicate;(f) where the plaintiff fails to comply with theprovisions of rule 9.Provided that the time fixed by the Court for thecorrection of the valuation or supplying of therequisite stamp-papers shall not be extended unlessthe Court,f or reasons to be recorded, is satisfiedthat the plaintiff was prevented by any cause of anexceptional nature from correcting the valuation orsupplying the requisite stamp papers, as the case maybe, within the time fixed by the Court and thatrefusal to extend such time would cause graveinjustice to the plaintiff."The present suit of the respondent being not covered by any ofthe clause of Order VII Rule 11 of the Code of Civil Procedure, therewas no occasion for learned Judge to dismiss the plaint.8. So far as the inherent power of Court u/s 151 of the Code ofCivil Procedure is concerned, in the case of Shipping Corporation ofIndia Ltd. (supra), the Supreme Court made the followingobservation :-"20. From the above, it is clear that if there is nospecific provision which prohibits the grant ofrelief sought in an application filed under Section https://hcservices.ecourts.gov.in/hcservices/ 151 of the Code, the Courts have all the necessarypowers under Section 161, CPC to make a suitableorder to prevent the abuse of the process of Court.Therefore, the Court exercising the power underSection 151, CPC first has to consider whetherexercise of such power is expressly prohibited by anyother provisions of the Code and if there is no suchprohibition then the Court will consider whether suchpower should be exercised or not on the basis offacts mentioned in the application."9. In the present case, though there is no express prohibition byany other provisions of the Act to dismiss the suit for non-prosecution, but the question raise is whether such power should havebeen exercised or not on the basis of the facts of the case.10. It is true that the summons were issued three times between1994 and 1996, but when the fourth time the summons returnedunserved, it appears that the matter was never placed before theCourt immediately. It is not the case of the appellant/respondentthat the case was listed after 11th Dec., 1996 and before January,2006 and the report of the process server was brought to the noticeof the plaintiff or its counsel and inspite of the same, no stepswere taken for fresh summons on the 1st defendant. If about ten yearshave passed and due to the work load of the Court the case was nottaken up by the court, as it appears from record, the plaintiffcannot be held guilty nor can suffer for the same. In thisbackground, if learned Judge refused to entertain the application aswas preferred by the 1st defendant, no interference is called for withsuch order.11. There being no merit, the appeal is dismissed. Consequently,connected miscellaneous petition is also dismissed. But there shallbe no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLN https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar,Original Side,High Court, Madras.+ 1 CC To Mr. R.Armugam, Advocate SR NO.2564 O.S.A. NO. 281 OF 2007cu[co]gp/5.2.