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One Square Investments Limited v. Remedial Resolutions Advisors Private Limited - NM Order No. 1910 of 2019
One Square Investments Limited v. Remedial Resolutions Advisors Private Limited - NM Order No. 1910 of 2019
One Square Investments Limited v. Remedial Resolutions Advisors Private Limited - NM Order No. 1910 of 2019
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Shraddha Talekar PS
4. Mr.Surinder Dhandsa ]
Residing at A 55, Albion Riverside, Hester ]
Road, ]
Battersea, London SW11 4YL, United ]
Kingdom ]
]
5. Mr.John Caird ]
Having his place of work at 1 Battersea ]
Square, ]
London SW11 3 YL, United Kingdon ].. Defendants
Mr. Virag Tulzapurkar, Senior Advocate, a/w Mr. Sameer Pandit, Ms.
Sarrah Khambati, i/b. Wadia Ghandy & Co., for plaintiffs.
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CORAM: N. J. JAMADAR, J.
RESERVED ON : 12th DECEMBER 2019
PRONOUNCED ON : 6th MARCH 2020
JUDGMENT :
application to recall and set aside the ex-parte decree passed by this
Court on 29th August 2018, recall and set aside the aforesaid decree,
set aside the order dated 21st March 2017 passed by the Prothonotary
facts :
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No.1.
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suits.
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section 151 of the Code of Civil Procedure, 1908 (‘the Code’). The
defendants claimed that they were unaware of the listing of the suit
before the Prothonotary and Senior Master and the Court, on various
dates, and passing of the ex-parte decree. The defendants learnt about
the decree when the plaintiffs Advocates ‘Bird and Bird’ addressed a
Courts Act, 2015 (‘the Commercial Courts Act’), the Prothonotary and
Senior Master could not have passed the direction for filing the
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written statement and the consequent order to transmit the suit to the
Rules, 1980 (‘Original Side Rules’), which empowers the Court to pass
proved by an affidavit. Since the plaintiffs have not taken out the
totally unaware of the suit being listed before the Prothonotary and
Thus, the defendants had decided to entrust all the matters in various
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were briefed, in the month of June 2016. Thus, M/s. Dhruve Liladhar
appear for the defendants before the Court. This, being an inadvertent
sufficient cause for setting aside the ex-parte decree, assert the
defendants did appear in the suit but failed to file the written
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Order VIII Rule 10 of the Code, and such a decree cannot be set aside
have not ascribed any cause much less sufficient for not taking out
dismissed.
defendants had full knowledge of the proceedings in the suit and had
process of the Court and there was lack of diligence on the part of
made out to set aside the decree and permit the defendants to contest
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deal with the assertions of the plaintiffs on facts and law as well.
position that the suit was governed by the provisions therein, the
Master, and transferring the suit to the list of undefended suits was
the nature of the suit and the order passed by this Court in notice of
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that the plaintiffs had failed to make out a prima-facie case, Mr.
for setting aside the decree purportedly under Order IX Rule 13 of the
Code is not at all tenable. It was urged with tenacity that the
passed ex-pare. It does not matter that this Court has also observed in
the order dated 29th August 2018 that the suit is taken up for ex-parte
decree since the defendants had appeared in the suit and failed to file
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aside the decree to satisfy the court that he was prevented by a cause
Rule 10, the learned Senior Counsel placed a strong reliance upon a
Joshi & Ors. Vs. Satish J. Dave & Ors. 1. In the said case, after
the Code and the previous pronouncements, this Court held that Order
Court has passed a decree under Order VIII Rule 5 or Rule 10 of the
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appeal, the execution and operation of the decree would not be stayed
2
Supreme Court of Parimal Vs. Veena alias Bharti , wherein the
read as under :
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do not deal with the fundamental challenge to the decree that it was
statement, does not forego the right to participate in the trial. Thus,
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16. To draw home this point, the learned Senior Counsel placed
3
India Vs. Kamakshya Singh Deo , wherein the Supreme Court
the defendant whose defence has been struck off to participate in the
trial. The Supreme Court held that the defendant, subject to the
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19. The learned Senior Counsel for the defendants, in the light of
of this Court which have taken the view that the provisions of Rule
the suit is listed before the Court for passing judgment without
Madhu Sushil Gupta Vs. V.R. Pictures & Others 4. In the said case, an
Trading v Nirlon Synthetics Fibres & Chemicals Ltd & Ors. 1 5, and
Tardeo Properties Pvt. Ltd. vs. Bank of Baroda 6 and the judgment of
the Supreme Court in the case of Iridium India Telecom Ltd. vs.
Motorola Inc.7. The learned Single Judge observed that “ read together,
these three decisions tell us in the most unequivocal terms that on the
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Original Side of this Court, given the extant Rules, a Court cannot
decree. That can only be done on a Notice of Motion filed under Rule
having been taken out which Rule 90 mandates, no decree under the
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22. It is imperative to note that the ex-parte decree, which was set
aside in Madhu (Supra), was passed on 7th March 2014. This Court is,
of the High Court for the trial of which, provisions have been made
evident that that sub-section (1) amends the provisions of the Code in
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the said Act shall prevail. Sub-section (3), thus, gives an overriding
This distinction was made for good historical reasons and it had
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unaffected even through the last amendment of the Code in the year
the contention of the appellant that the force of the non obstante
25. The Supreme Court, thus held that the time limit prescribed in
Order VIII, Rule 1 for filing written statement, is not applicable to the
of High Court, including the Chartered High Courts, and the existence
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Order V, Rule 1 and Order VIII Rules 1 and 10, of the Code, as
Order VIII, the Court has no power to extend the time beyond the
said period of 120 days. Thus, the provisions of Order VIII Rule 10 as
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mandatory.
hand, if it is held that the provisions of the Original Side Rules still
Rules may not apply with equal force to the suit in respect of a
Court.
of the written statement within the stipulated period, and transfer the
suit to the list of the undefended suits, in the event of default, also
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the suit or application where the final judgment has been reserved by
section (3) provides that where any suit or application shall stand
shall apply to those procedures that were not complied at the time of
transfer.
32. The learned Senior Counsel for the defendants urged with a
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time period within which the written statement shall be filed. In the
the Prothonotary and Senior Master could not have stipulated the time
for filing the written statement by the order dated 20 th February 2017.
Nor the suit could have been transferred to the list of undefended
(emphasis supplied)
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before 21st March 2017 on the pain of transfer of the suit to the list
not have legitimately prescribed a time limit for filing the written
statement.
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the enactment of the Commercial Courts Act, 2015 and have been
Commercial Court, as the case may be, may hold Case Management
and Senior Master fixing a time line for filing the written statement,
suit, was not competent. The order passed by the Prothonotary and
Senior Master on 21st March 2017 transferring the suit to the list of
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the jurisdiction to prescribe the time limit for filing the written
that the reason of the defendants having missed to entrust the papers
appearance in the instant suit. This fact could have been adequately
Mr.Tulzapurkar.
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undefended suits and listed before the Court in that category, the
was given to M/s. Dhruve Liladhar and Company nor the copy of the
39. In the light of the aforesaid view, which this Court is persuaded
in reply.
40. It is well neigh settled that the term ‘sufficient cause’, whenever
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41. Viewed through the aforesaid prism, in the facts of the case, the
aware of the ex-parte decree only upon being served with the
time the defendants had the opportunity to know about the passing of
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justifiable.
42. Since this Court is of the considered view that the Prothonotary
and Senior Master could not have prescribed the time limit for filing
the written statement and passed an order transferring the suit to the
written statement within the stipulated period, having noted that the
Counsel for the plaintiffs, in the alternative, urged that the defendants
protect the interest of the plaintiffs, in the event the ex-parte decree
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IX. As the principal reason for the setting aside the decree is the
order :
O R D E R
following terms :
stands condoned
set aside.
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weeks.
[ N.J. JAMADAR J. ]
***
1 At this stage, the learned counsel for the plaintiffs seeks
the prayer.
and correctness of this order and at the same time continue the
August 2018.
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[ N.J. JAMADAR J. ]
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