GA 61 of 2017 and CS 58 of 2014. Case: J.H. Industrial Corporation Vs Vijendra Kumar Goel. High Court of Calcutta (India)
| Case Number | GA 61 of 2017 and CS 58 of 2014 |
| Counsel | For Appellant: Manju Agarwal and Dharmendra Tiwari, Advs. and For Respondents: K. Thakkar, Brajesh Jha and Arif Ali, Advs. |
| Judges | Arijit Banerjee, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rules 13, 7; Limitation Act, 1963 - Section 5 |
| Judgement Date | April 13, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Arijit Banerjee, J.
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This application has been taken out by the defendant for recalling of a decree for Rs. 26,54,355.74 along with pendente lite interest at the rate of 18 per cent per annum and interest on judgment at the rate of 12 per cent per annum. By the said decree costs assessed at Rs. 60,000/- was also awarded in favour of the plaintiff.
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The said decree was passed when the suit appeared in the undefended list in view of the fact that the defendant did not enter appearance in the suit as certified by the department of this Court. It is not in dispute that the writ of summons was duly served on the defendant.
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The defendant/petitioner contended that immediately on receipt of the writ of summons, he engaged one Manoj Malhotra, Learned Advocate to represent him in the above suit. He further contended that his left arm was amputated from below the elbow at an early age and he has also been suffering from Buccal Mucosa (said to be a form of carcinoma) since 2013. He has undergone treatment at Tata Medical Centre, Calcutta and Bombay, as also other hospitals in Calcutta. He has to undergo constant treatment for his illness to prevent it from turning malignant. Due to his ailments, he has to travel frequently to Bombay and visit different medical practitioners at Calcutta for consultation and treatment. For these reasons his business is suffering and he is unable to attend to his other affairs. Having engaged an Advocate and paid his fees and having given complete instructions to him, the petitioner reasonably believed that the learned Advocate would take all necessary steps to protect the petitioner's interest in the suit. From time to time, the petitioner made enquiries with the learned Advocate and was told that the suit had not been taken up for hearing and the learned Advocate assured him that he would be duly represented when the suit is heard. In those circumstances the petitioner was shocked to receive a letter dated December 17, 2016 whereupon he first came to know that the suit has been decreed and the decree had been put in execution. In a nutshell these are the reasons advanced by the defendant as to why he could not contest the suit.
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The defendant's further case is that he has a complete defence to the plaintiff's claim. The plaintiff and the defendant used to maintain a mutual and running account. The defendant used to supply MS Channels and Plates to the plaintiff as per the requirement of the latter. On a true and correct accounting, a sum in excess of Rs. 16 thousand would be due and payable by the plaintiff to the defendant.
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The plaintiff has denied each and all the averments made by the defendant in his recalling application. Learned Advocate for the plaintiff has raised strong doubts as to whether at all the defendant briefed Mr. Manoj Malhotra, Advocate to defend his case. She submitted that no satisfactory explanation has been furnished for approaching this Court about one year after passing of the decree. According to her, the grounds stated by the defendant do not constitute sufficient cause for his non-appearance when the suit was decreed ex parte.
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The plaintiff has also filed a supplementary affidavit. To such affidavit, the plaintiff has annexed various documents downloaded from internet showing that the defendant carries on business through the instrumentality of a private limited company called BWN Alloys Pvt. Ltd. of which the defendant and his wife are the only shareholders. The plaintiff has also annexed to the said affidavit balance-sheets of the said limited company as on 31 March, 2015 and 31 March, 2016 as also profit and loss accounts. Referring to such documents, learned Advocate for the plaintiff submitted that the defendant is actively pursuing business activities and his illness has not stood in the way of doing so. Hence, the plea of the defendant that his business is suffering due to his ailments and he is unable to attend to his business is specious and false. Learned Advocate submitted that although it is unfortunate that the defendant may be suffering from a form of carcinoma, the same has not prevented him from carrying on commercial activities on a full scale. By highlighting his ailment, the defendant is only trying to invoke the sympathy of this court.
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Learned Counsel also disputed the submissions made by the learned Advocate for the defendant on the merits of the plaintiff's claim. She referred to certain documents on record and submitted that the plaintiff's claim is as good as admitted by the defendant.
Court's View:-
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At the outset I make it clear that while deciding the present application, I am not concerned with the merits of the...
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