The court’s recent judgment delves into the intricacies of service of summons and the authenticity of a power of attorney in a legal case. The court’s legal analysis and rulings shed light on crucial aspects of the case, providing clarity on these key legal issues. This summary focuses on the court’s meticulous examination and decisions regarding these important aspects of the case.
Facts
- The appellant filed Notice of Motion No.580 of 2018 seeking to set aside the ex-parte judgment and decree dated 07.10.2003.
- The appellant claimed that summons of the original suit were never served on them and that Rule 90 of the Bombay High Court Rules was not followed.
- The Single Judge dismissed the Notice of Motion stating that the appellant had engaged an advocate who filed a vakalatnama, and the summons was served on the appellant through the bailiff.
- The Division Bench upheld the Single Judge’s decision stating that the appellant was represented by advocates in the suit and the summons was served on them.
- The Court decreed the suit ex-parte on 07.10.2003, directing the appellant to pay a sum with interest and granting various reliefs against the appellant.
- The High Court dismissed the appellant’s appeal and review petition against the ex-parte judgment and decree.
- The trust-Parikh Goradia Trust was established under an Indenture of trust dated 01.04.1976.
- The trust was supposed to end on 30.09.1985 with the fund to be distributed among beneficiaries, but the trustees did not do so.
- An agreement was made on 06.10.1978 for the sale of a part of the trust property to the appellant for Rs.10,00,000.
- The appellant entered into a leave and licence agreement on 10.04.1989 with respondent No.2-M/s. Woodlands Garden Cafe to run a restaurant in the premises.
- Respondent No.2-M/s.Woodland Garden Cafe has been in possession since 1989, but faced issues when closed for repairs in 1992.
- Allegations were made that during the repairs in 1992, the appellant caused damage and unauthorized construction, leading to legal action by respondent No.1.
- A review petition was filed but was eventually dismissed on 26.10.2018.
Also Read: Jurisdiction of Family Court in Cases under Muslim Women’s Protection Act
Arguments
- The appellant never authorized K. Shrinivas Rao to appear on behalf of the appellant in the original suit No. 2865 of 1994.
- The appellant contends that the Power of Attorney dated 29.04.1993 is not genuine despite the High Court’s opinion.
- The High Court noted the presence of a vakalatnama signed by the constituted attorney of the appellant on behalf of M/s. Narayanan & Narayanan, Advocates.
- Rule 79 of the Bombay High Court Rules was invoked regarding the acceptance of service of a writ of summons by the advocate on behalf of the appellant.
- The High Court rejected the appellant’s stand, stating that the alleged Power of Attorney was properly executed by the Chairman and Managing Director of the appellant company.
- The appellant disputes the authenticity of the signing of the vakalatnama by K. Shrinivas Rao on behalf of the appellant in the original suit.
- Appellant approached with incorrect averments leading to rejection of Notice of Motion.
- Amendment application filed by respondent No.1 impleaded respondent No.2 as defendant No.1A.
- Appellant and respondent No.2 were duly served and participated in the proceedings.
- Premises acquired with contribution from respondent No.2 – M/s. Woodland Garden Cafe, hence respondent No.2 should be heard before passing any orders.
Also Read: Clarity on Arbitration Seat Jurisdiction
Analysis
- The Court directed the payment of subsequent interest at 6% per annum on the amount of Rs.77,02,500 till the date of realization.
- The learned Single Judge dismissed the Notice of Motion No.580 of 2018 after checking the original affidavit of the bailiff and the file, noting the absence of an affidavit in rejoinder.
- The Court refrained from delving into the merits of the contentions regarding the appellant’s service and appearance in the suit, as the suit was primarily for damages.
- The suit was filed for the recovery of damages amounting to Rs.1 crore, with respondent No.1 seeking interest at 24% per annum.
- Opportunity to contest the suit granted to the appellant
- Appellant showed bona fide by depositing Rs.60,00,000/-
- No indication that appellant would benefit from not contesting
- Damages to property can only be ascertained after evidence is presented
- Appellant to be given a chance for contesting the suit
Also Read: Land Acquisition Valuation and Development Deductions
Decision
- Appellant granted two months further time for deposit of Rs.35,00,000/- to be invested in a nationalized bank.
- Permission granted for withdrawal of Rs.60,00,000/- by respondent No.1 and other trustees/beneficiaries without prejudice to the contention of both parties in the suit.
- Deposit of Rs.35,00,000/- subject to the outcome of the suit.
- No costs awarded.
- Respondent No.1 and other trustees/beneficiaries can file application for disbursement of amount pending suit.
- Appellant and respondent No.2 to file written statement within four weeks, with ample opportunity to adduce evidence and dispose of suit.
- Total amount payable under decree is Rs.1,20,03,282.96.
- Impugned judgment and order set aside, appeals allowed with conditions on disbursement of amount.
- Suit No.2865 of 1994 ordered to be restored.
- Disbursement of amount to other beneficiaries of the trust as per entitlement.
Case Title: AVIATION TRAVELS PVT. LTD. Vs. BHAVESHA SURESH GORADIA (2020 INSC 245)
Case Number: C.A. No.-001890-001891 / 2020
