The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1476 OF 2018 (An application under Article 227 of the Constitution of India) ***** M/s. Magma Fincorp Limited, Khurda …. Petitioner -versus- Rajeswari Mohanty and another …. Opp. Parties Advocate for the Parties : For Petitioner : Mr.Ramakant Mohanty, Senior Advocate being assisted by Mr. D. Mohanty, Advocate
Legal Reasoning
For Opposite Parties : Mr. S.R. Pattanaik, Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------- Heard and disposed of on 12.11.2024 -------------------------------------------------------------------------- J U D G M E N T 1. This matter is taken up through hybrid mode. 2. Petitioner in this CMP seeks to assail the judgment dated 2nd November, 2018 (Annexure-1) passed in F.A.O. No.15 of 2018, whereby learned District Judge, Khurda at Bhubaneswar dismissing the Appeal, confirmed the order dated 8th February, 2018 (Annexure- 4) passed by learned Civil Judge, (Senior Division), Bhubaneswar in CMA No.06 of 2007 (arising out of MS No.13 of 1999) dismissing CMP NO.1476 OF 2018 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 the application filed by the Defendant-Petitioner under Order IX Rule 13 CPC. 3. Mr. Mohanty, learned Senior Advocate appearing for the Petitioner-Company submits that MS No.13 of 1999 (MS No.56/13 of 2004/1999) was filed by the Plaintiff-Opposite Party No.1 for accounts. The Plaintiff-Opposite Party No.1 taking financial assistance from the Petitioner-Company had purchased a vehicle bearing Registration No.OR-13-2661. It is asserted in the plaint that after adjustment of the amount paid by the Plaintiff-Opposite Party No.1, the vehicle should be handed over to the Plaintiff- Opposite Party No.1 within a stipulated time. The Plaintiff also prayed for damages and cost, etc. The suit was decreed preliminarily vide judgment dated 24th December, 2005 with the following order: “That, the suit is preliminarily decreed on contest against the defendants with cost. The defendants are hereby directed to render the account regarding the amount due to be paid by the plaintiff as per the terms of the hire purchase agreement within two months hence and on receipt of such amount from the plaintiff. The defendants are further directed to release the seized vehicle in favour of the plaintiff and to pay a sum of Rs.1,54,500/- to he within two months, failing which the plaintiff shall be at liberty to execute the same by applying the court to make decree final.” 4. Accordingly, the preliminary decree was prepared. Subsequently, the Plaintiff-Opposite Party No.1 initiated the Final Decree Proceeding for ascertainment of the amount to be paid by the Defendant to him. Although, the Defendant-Petitioner appeared through his Advocate, but, he subsequently left practice without any notice to the Petitioner-Company, for which he was in dark about the CMP NO.1476 OF 2018 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 developments and status of the Final Decree Proceeding. The Final Decree Proceeding was pending in the Court of learned District Judge-cum-First Track Court, Bhubaneswar, when the Petitioner entered appearance through its panel Advocate, but subsequently the Final Decree proceeding was transferred to the Court of learned Civil Judge (Senior Division), Bhubaneswar on 5th May, 2010. As the Defendant-Petitioner did not have notice of the same it could not appear and contest the proceeding for which notice under Order V Rule 20 CPC was published in the Odia Daily ‘The Sambad’. Accepting the said paper publication under Order V Rule 20 CPC, learned trial Court held service of notice on the Defendant-Petitioner to be sufficient and proceeded with the Final Decree Proceeding setting the Defendant-Petitioner ex parte on 12th January, 2012. The Defendant-Petitioner came to know about the ex-parte final decree only when it received the notice in Execution Case No.215 of 2016. Non-appearance of the Defendant-Petitioner in the Final Decree Proceeding was bona fide and beyond its control. The preliminary decree was passed only determining the entitlement of the Plaintiff- Opposite party No.1. But, the calculation of the amount was done in the Final Decree Proceeding, in which the Petitioner was prevented by sufficient cause to participate. It is, therefore, contended that the ex parte final decree should be set aside and the Defendant-Petitioner should be allowed to contest the Final Decree Proceeding. 4.1. It is further submitted by Mr. Mohanty, learned Senior Advocate that assailing the preliminary decree, the Defendant- Petitioner had filed RFA No.67 of 2006. The matter is at present CMP NO.1476 OF 2018 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 pending before Hon’ble Supreme Court and further proceeding of the Execution Case has been stayed. He, therefore, submits that unless the Defendant-Petitioner is allowed to participate in the Final Decree Proceeding by setting aside the ex-parte decree, it will be highly prejudiced. 5. Mr. Pattanaik, learned counsel for the contesting Opposite Party No. 1 vehemently objects to the submission of Mr. Mohanty, learned Senior Advocate and contends that the Defendant-Petitioner has not assigned good reason/cause for not participating in the Final Decree Proceeding. The explanation given by the Defendant- Petitioner is not a cause, but an excuse. Mere excuse cannot be a ground to be considered for setting aside an ex parte decree. It is submitted that both learned trial Court as well as learned appellate Court considering the materials from all angles have opined that the Petitioner is not entitled to the relief sought for in the petition under Order IX Rule 13 CPC. Hence, he prays for dismissal of this CMP. 6. 7. 8. Heard learned counsel for the parties. Perused the materials on record. It apparent from record that the Defendant-Petitioner had appeared in the Final Decree Proceeding by engaging a lawyer. The Final Decree Proceeding was pending in the Court of learned Additional District Judge-cum-First Track Court, Bhubaneswar, when the Defendant-Petitioner entered appearance through its panel lawyer. The proceeding was subsequently transferred to the Court of learned Civil Judge (Senior Division), Bhubaneswar. But, learned CMP NO.1476 OF 2018 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 counsel engaged by the Defendant-Petitioner did not appear. Thus, an application was filed by the Plaintiff-Opposite Party No.1 under Order V Rule 20 CPC to take out substituted notice. The said notice was published in Odia Daily ‘The Sambad’, which has wide circulation in the locality, where the Defendant-Petitioner was ordinarily carrying on its business for gain. Accepting the notice published under Order V Rule 20 CPC, learned trial Court held that service of notice on the Defendant-Petitioner to be sufficient and it was set ex parte on 12th January, 2012. Thereafter, the Final Decree Proceeding continued. 9. It is alleged by the Defendant-Petitioner that it came to know about the final decree only when it received the notice on Execution Case No.215 of 2016. The said fact cannot be accepted, as the Defendant-Petitioner was being represented by learned counsel in the Final Decree Proceeding. Of course, a plea is taken by the Petitioner that its panel lawyer left the profession without intimation to the Petitioner. Thus, the Petitioner was in dark about the proceeding for which it could not take step and was set ex parte. Learned appellate Court, while adjudicating the matter, has taken note of the ratio in the case of Sunil Poddar and others -v- Union Bank of India, reported in AIR 2008 SC 1006, wherein it is held that the party seeking a relief under Order IX Rule 13 CPC was duty bound to take necessary enquiry about the proceeding in the suit. Admittedly, no such effort appears to have been made by the Defendant-Petitioner. It is easy to allege against the advocate to seek a relief in the Court, but, the Petitioner in the petition under Order IX CMP NO.1476 OF 2018 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 Rule 13 CPC has to satisfy the Court that he was prevented by sufficient cause from not appearing on the date of hearing of the suit/Final Decree Proceeding. In the instant case, no such ground has apparently been made out. It further appears that the Defendant- Petitioner has taken a ground that the suit was not maintainable as the Petitioner-Company was merged with the Opposite Party No.2 in a proceeding under the Companies Act, 2013. Learned appellate Court dealt with the said contention elaborately and observed that the said objection merits no consideration in a petition under Order IX Rule 13 CPC. Non-appearance of learned counsel in the Final Decree Proceeding or any misdemeanor on his part in not informing the Defendant-Petitioner about the proceeding cannot be construed as a sufficient cause for setting aside an ex-parte decree. 10. Fact remains that Defendant had notice to the Final Decree Proceeding. It had participated in the said proceeding by engaging a lawyer. Thus, he was under obligation to ascertain the status and proceeding of the litigation. It is, more so, because of the fact that that Petitioner is a Finance Company and has a legal cell to assist the management. 11. On perusal of the impugned orders under Annexures-1 and 4, it is manifest that the same are passed considering the materials on record and the findings are based on evidence. The findings are based on sound legal principles. Only because a different view may be possible by re-appreciating the evidence, this Court in exercise of extra ordinary jurisdiction under Article 227 of Constitution of India, CMP NO.1476 OF 2018 Page 6 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Nov-2024 18:07:24 should not substitute its own finding. Hence, I am not inclined to interfere with the impugned orders under Annexures-1 and 4. 12. Accordingly, this CMP, being devoid of any merit, stands dismissed. 13. Interim order dated 3rd January, 2019 passed in IA No.1568 of 2018 stands vacated. In the facts and circumstances, there shall be no order as to cost. Urgent certified copy of this judgment be granted on proper application. High Court of Orissa, Cuttack The 12th November, 2024 // Rojalin // (K.R. Mohapatra) Judge CMP NO.1476 OF 2018 Page 7 of 6