Bata India Ltd. vs Amiya Sankar Patra

M.M. Das, J.—This appeal is preferred against an order passed on an application under Order 9, Rule 13 Code of Code of Code of CPC filed by the Appellant in Civil Suit No. 21/394 of 2007/ 2006. The Respondent as Plaintiff filed the above suit before the Learned Civil Judge (Sr. Division), Baripada seeking a decree for declaration of title & mandatory injunction along with damages & other consequential reliefs against the Appellant-Defendant. The suit was subsequently transferred to the Court of Ad hoc Addl. District Judge & renumbered. The suit was decreed ex parte by Judgment & decree dated 26.6.2007 & 7.7.2007 respectively. The Respondent filed Execution Case No. 2 of 2007 in which steps for attachment of moveable properties as well as seizure of the Retial Out-let of the Appellant situated at Traffic Square, Baripada were taken on 20.12.2007. It is the case of the Appellant that on that day itself, the Appellant could come to know about the ex parte decree passed against it & filed an application under Order 9, Rule 13 Code of Code of CPC which was numbered as CMA. Case No. 4 of 2007 along with an application u/s 5 of the Limitation Act to condone the delay. The Respondent filed an objection to the said application. The Appellant also filed an application u/s 47 CPC before the executing Court which upon being neglected, it preferred W.P.(C) No. 6322 of 2007 herein was disposed of by this Court by partly allowing the Writ Petition & directing the Appellant to deposit the entire decretal dues with a month. Challenging the said order, the Appellant preferred Writ Appeal No. 171 of 2008 & this Court by Order Dated 15.9.2008, while setting aside the order of the Hon''ble Single Judge, directed the Trial Court to take up the application filed under Order 9, Rule 13 Code of Code of CPC first & dispose of the same in accordance with law. In the event, the said application is rejected, the Trial Court will consider the application filed by the Appellant u/s 47 CPC The application under Order 9, Rule 13 Code of Code of CPC was filed by the Appellant on the ground of insufficiency of service of summons on it in the suit. The Learned Court below in the impugned order, considering the respective contentions of the parties framed three questions, such as, whether Pall ash Bhowmik, District Manager, Bata India Ltd. has locus standi to file the petition on behalf of the Petitioner-company (Appellant); whether the petition is barred by law of limitation & whether the summon in the original suit has been duly served on the Petitioner (Appellant) or not & the Petitioner-Appellant has sufficient cause for non-appearance in the original suit.

Two witnesses were examined on behalf of the Appellant as against three witnesses examined on behalf of the Respondent, before the Trial Court. The Learned Court below relying upon the decision in the case of Simplex Concrete Piles (India) Pvt. Ltd. Vs. S. Ahmad, , held that Mr. Pallash Bhowmik, who has not filed any power of attorney or letter of authority on behalf of the Appellant has. no locus standi to file petitions under Order 9, Rule 13 Code of Code of CPC & u/s 5 of the Limitation Act.

With regard to the question of limitation, the Learned Court below considering that the period of limitation as prescribed is 30 days from the date of the decree or from the date of the knowledge of the applicant, if it is proved that summons or notice was not duly served, & analyzing the evidence on record, disbelieved the case of the Appellant. For the above finding, the Learned Court below has taken note of the fact that neither the said Pallash Bhowmik, nor the Managing Director of the Petitioner-company (Appellant) examined themselves, P.W.1 examined on behalf of the Petitioner-company (Appellant) was not authorized by the Petitioner-company & stated that he had no knowledge as to when the ex parte decree has been passed. He has also taken note of the statement of P.W.2, who has not stated in his evidence as to when the Petitioner-Appellant came to know about the ex parte decree. On the above basis, the Learned Court below disbelieved the case of the Appellate that for the first time, it came to the knowledge of the Petitioner-company about the existence of the ex parte decree on 20.12.2007 when the movables were sought to be attached. It was also taken note of by the Learned Court below that the P.W.1 had admitted in his cross-examination that the seal marked as Ext. ''A'' on the postal A.D. was the seal of the Appellant-company. On the above basis, the Learned Court came to the conclusion that the application filed under Order 9, Rule 13 Code of Code of CPC is barred by limitation.

With regard to the fact as to whether summons were served on the'' Appellant-company, the Learned Court below on analyzing the materials on record, more specifically, the statement of O.P.W.1 that on enquiry from the postal authorities, it was ascertained that the summons issued through registered post was delivered to the Appellant-company & the said summons were issued vide postal receipts under Ext. ''C'' as well as the letter addressed to the Post Master under Ext. ''D'' & the reply thereto by the Superintendent of Post Offices, Mayurbhanj under Ext. E shows that summons were delivered to the Managing Director, Bata India Ltd., 6-A, S.N. Banerjee Road, Kolkata.

Considering the rival contentions made by the parties & the provisions of Order 5, Rule 9-A Code of Code of CPC & taking note of various decisions, more specifically, the decisions in the case of Basant Singh and Anr. v. Roman Catholic Mission 95 (2003) CLT 324 , the Learned Trial Court concluded that it cannot be said that summons were not served on the Petitioner-Appellant & it had no knowledge regarding the institution of the same. Even assuming that the summons were not duly served on the Petitioner-Appellant, the petition field to set aside the ex parte decree passed in the original suit cannot be allowed as the same has not been filed by the proper person & the same is also barred by law of limitation.

I, on independently scrutinizing the materials on record & the evidence adduced by the respective parties, am of the firm opinion that there is absolutely no error in the conclusions arrived at by the Trial Court & no illegality can be attributed to have been committed in passing the impugned order. The appeal, therefore, fails being devoid of merit & is accordingly dismissed, but in the circumstances without cost.

Appeal dismissed.