Indusind Bank Ltd. vs Hukam Singh

Pratap Krishna Lohra, J.—The appellant, Indusind Bank Ltd., is a company incorporated under the Companies Act, 1956 and licensed as a Bank under the Banking Regulation Act, 1949, has laid this appeal under Order 43 Rule 1(d) of the Code of Civil Procedure (for short, ''CPC'') to assail the order impugned dated 11th December, 2014 passed by the learned Additional District Judge No. 1, Bhilwara. By the order impugned, learned Court below has turned down the application of the appellant-Bank under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex-parte judgment and decree dated 21st October, 2013.

Succinctly stated the facts of the case are that respondent-plaintiff instituted a civil suit against the appellant-Bank for recovery of a sum of Rs. 3,50,000/- before the learned Court below. After service of summons on the appellant-Bank, none appeared on its behalf, and therefore, the Court proceeded ex-parte on 24th October, 2009. The ex-parte proceedings for the suit continued for almost four years and finally ex-parte decree in favour of respondent-plaintiff was passed on 21st October, 2013. While passing the ex-parte decree, the learned Court below has recorded a finding that summons are duly served on the appellant on 31st July, 2009.

In order to set aside ex-parte decree, appellant moved an application before the learned Court below under Order 9 Rule 13 CPC on 27th October, 2014. In the application, it is, inter alia, averred that after receiving summons, the authorized representative of the Bank, Mr. Ravindra Singh Jhala, entrusted brief to advocate, Mr. Rameshwar Lal Jat, and in turn the concerned advocate has assured the authorized representative of the Bank that he would appear and plead the cause of the Bank before the Court. It is also pleaded that despite entrustment of brief to the concerned advocate, he has not appeared before the learned Court below, and therefore, the Court proceeded ex-parte and eventually decreed the suit.

Certain facts concerning the authorized representative, Mr. Ravindra Singh Jhala, are also incorporated in the application that he has resigned from the Bank in January, 2010. The Bank has categorically averred, in the application, that its Bhilwara Branch came to know about the ex-parte decree through letter dated 22nd September, 2014 issued by the Court, which was received by the branch concerned on 25th September, 2014. It is further pleaded, in the application, that subsequent to that the Legal Manager, Bhilwara Branch, with one lawyer made endeavor to obtain certified copy and thereafter, from the date of knowledge, this application for setting aside ex-parte judgment and decree is being filed. The application is duly supported by an affidavit of the authorized signatory of the Bank.

The application is contested by the respondent-plaintiff and all the averments contained therein are refuted. The respondent-plaintiff has categorically averred in the return that appellant-Bank never engaged Mr. Rameswar Lal Jat as its advocate and the said advocate never appeared before the Court to represent the Bank for more than four years. Attributing total apathy and callousness, on the part of the appellant-Bank, respondent has pleaded in the reply that ex-parte order and ex-parte decision has been rendered by the Court after due service of summons, and therefore, the same is not liable to be set aside on the flimsy plea of the appellant-Bank. It is also submitted, in the reply, that entire story of the appellant-Bank about engagement of a lawyer is false and concocted just to camouflage its serious omissions and commissions for non-appearance. The respondent has also averred, in the reply, that it is per-se unbelievable that after entrustment of brief to an advocate, the appellant-Bank has not made any endeavor to solicit information about the case for more than four years and further the Bank has not rendered any assistance to the lawyer concerned. An objection about delayed presentation of the application is also incorporated in the reply.

The learned Court below, after hearing the rival submissions, rejected the application of the appellant-Bank, while observing that appellant was totally negligent in defending the cause despite due service of summons and as such Court is not inclined to exercise discretion in its favour.

Learned counsel for the appellant, Mr. Dhanesh Saraswat, submits that the learned Court below, while examining the application under Order 9 Rule 13 CPC, has not cared to examine the factual background of the case, and therefore, the impugned order is perverse, which is liable to be reversed. Mr. Saraswat would contend that, when appellant-Bank has engaged a lawyer for his non-appearance in the matter, appellant cannot be made to suffer, was a vital issue, which has not been properly addressed by the learned Court below in the impugned order. Lastly, Mr. Saraswat submits that Courts are meant for deciding matter bipartite, and therefore, the learned Court below ought to have set-aside ex-parte decree for its decision afresh after bipartite hearing for doing substantial justice.

Per contra, Dr. Sachin Acharya, learned counsel for the respondent, submits that the learned Court below has examined the matter threadbare and has reached to a just conclusion for rejecting the application to set aside ex-parte decree, which calls for no interference. Dr. Acharya further submits that the provisions of Order 9 Rule 13 are not meant for coming to rescue of a party, which is totally indolent and has shown culpable negligence in defending a cause. Dr. Acharaya would contend that appellant has miserably failed to make out a case of sufficient cause for setting aside ex-parte decree and there is nothing on record to show bona fide of the appellant-Bank. Lastly, Dr. Acharya submits that if the appellant-Bank remained dormant for more than four years after service of summons, it is not desirable to upset the impugned order on its unsubstantiated plea about engagement of a lawyer. In support of his contention, Dr. Acharya placed reliance on a decision in the case of Rajasthan State Road Transport Corporation v. Oriental Fire and General Insurance Co. Ltd. and Ors. [2013 (2) DNJ (Raj.) 723].

I have heard learned counsel for the parties and perused impugned order.

On perusal of the impugned order it clearly and unequivocally emerges out that summons issued by the learned Court below were received by the authorized representative of the Bank as early as on 31st July, 2009 and since then the Bank has not made any endeavor to appear before the Court below. The learned Court below, even after service of summons on 31st July, 2009, proceeded ex-parte against the appellant-Bank as late as on 24th October, 2009. After passing ex-parte order, the proceedings continued for almost four years and finally, the learned Court below passed ex-parte judgment and decree on 21st October, 2013.

There remains no quarrel that in the interregnum i.e. from August 2009 till passing of the ex-parte judgment and decree, nobody has appeared on behalf of the appellant-Bank before the learned Court below.

It is really strange that appellant is a banking company manned by many officers including legal manager has shown total callousness and apathy towards litigation. After service of summons on the authorized representative of the Bank, it was expected of the Bank to appear before the Court and defend its cause.

On the face of it, in my opinion, entrustment of brief to advocate, Mr. Rameshwar Lal Jat, appears to be an after thought as no material was placed before the learned Court below in support of this positive assertion by the appellant.

Assuming it that the Bank has engaged lawyer then too it is per-se unbelievable that Bank has not inquired about the proceedings in the matter for more than four years. Appellant-Bank is a baking company having many branches in the entire country and is also offering its clients on-line banking services cannot plead ignorance about pendency of a case before a Court of law. In want of any proof about engagement of lawyer by the appellant-Bank or initiation of any action against the so-called lawyer, I am not persuaded to concur with the submissions of the appellant and consequently I am unable to find any fault with the impugned order.

In Rajasthan State Road Transport Corporation (supra), this Court, while considering a plea that due to dispute with the lawyer he has not informed his client-Corporation about suit proceeding, has held that such a plea is unacceptable in absence of cogent material, and therefore, is not tenable. The Court held in paras 4 and 5 are as under :--

"4. Having regard to the submissions made by the learned counsels for the parties and to the documents on record, it transpires that an ex-parte decree dame to be passed against the appellant corporation as the appellant did not lead any evidence in the suit. The contention raised by learned counsel for the appellant that the concerned Advocate Mr. Vyas did not inform the corporation because of his disputes with the corporation, cannot be accepted, for the simple reason that there is nothing on record to suggest that Corporation had any disputes with the said Advocate. The appellant-Corporation also does not appear to have taken any action against the said Advocate for remaining negligent and careless in the suit, which had resulted into passing of the ex-parte decree against the corporation. It also appears that the decreetal amount has already been recovered by the respondent No. 1 Insurance Company from the account of the appellant-corporation in the execution proceedings.

The trial Court after having considered the facts and circumstances of the case has rejected the application of the appellant-corporation under Order IX Rule 13 by the impugned order which does not suffer from any illegality or perversity. In that view of the matter, the appeal being devoid of merits, deserves to be dismissed and is accordingly dismissed."

Well it is true that a litigant cannot be made to suffer on account of omissions of a lawyer but some proof is required to be given that how and in what manner advocate was negligent in discharging its professional obligation. In the instant case, there is no iota of evidence to indicate that the appellant-Bank has entrusted brief to the advocate concerned, and therefore, the argument of the learned counsel, in this behalf, though quite alluring, but not of substance.

Therefore, in my opinion, the learned Court below, while exercising its discretion judiciously, has rightly rejected the application of the appellant under Order 9 Rule 13 CPC, which requires no interference in this appeal with limited scope of judicial review.

Resultantly, appeal fails and the same is, hereby, dismissed summarily.