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AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO.10 OF 2007
ALONG WITH
NOTICE OF MOTION NO.376 OF 2007
IN
APPEAL NO.423 OF 2005
IN
NOTICE OF MOTION NO.429 OF 2004
IN
SUMMARY SUIT NO.4600 OF 1997
Arun Kumar Kanoria,
Indian Inhabitant, R/at 1A,
LA-VINA Courts, 67-7th Cross
8th Main Road, RMV Extension,
Bangalore - 560 080 and having
his office at Bangalord
Pesticides Limited, 170, 10th
Main Road, 2nd Cross, Raj
Manal, Vilas Extension,
Bangalord - 560 080 ....Petitioner
V/s.
United Phosphorous Limited,
a company incorporated under
the Companies Act, 1956 and
having its administrative
office at Readymoney Terrace,
167, Dr.A.B. Road, Worli,
Mumbai - 400 018 .....Respondent.
Mr.Sanjay Jain i/by Mr.H.V. Chande for the
petitioner.
Mr.Prakash Shah i/by M/s.PDS Legal for the
respondent.
CORAM : P.B. MAJMUDAR &
J.P. DEVADHAR, JJ.
DATED : 19TH DECEMBER, 2008
ORAL JUDGMENT (Per P.B. Majmudar, J.)
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1. Delay in filing the review petition is
condoned. The notice of motion is accordingly
disposed of. The review petition is taken up for
hearing today.
2. This is an absolutely vexatious proceedings
taken out by the petitioner-judgment debtor, who is
interested in delaying the proceedings even though
the decree is passed more than seven years ago.
3. The respondent herein instituted a Suit in
November 1997
ig being Summary Suit No.4600 of 1997
for recovery of Rs.41,00,000/- as principal amount
with interest. In the said Suit, the Plaintiff
took out Summons for Judgment No.200 of 1998 in
March 1998. The present Appellant who was original
defendant, thereafter filed reply and filed his
affidavit to the summons for judgment. On
25-10-1999, conditional order was passed on the
summons for judgment, directing the present
appellant to deposit Rs.47,00,000/- within 14 weeks
from the date of order.
4. Aforesaid order was challenged before the
Division Bench of this Court on the ground that
unconditional leave should have been granted to the
defendant to defend the Suit. Said appeal was
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dismissed as back as on 13-6-2000. The said order
was challenged by way of Special Leave Petition
before the Hon’ble Supreme Court. Said S.L.P. was
also dismissed in November 2000. Ultimately the
Suit was decreed as back as on 12-2-2001.
5. After the suit was decreed, the Appellant
submitted an application under Order 37 Rule 4 of
the Code of Civil Procedure for setting aside the
decree by filing Notice of Motion No.429 of 2004.
Said notice of motion was dismissed by this Court
on
10-12-2004 and the Court found that no special
case is made out by the Defendant under Order 37
Rule 4 of the Code of Civil Procedure for setting
aside the decree.
6. The said order was challenged by way of an
Appeal bearing No.423 of 2005. The said Appeal was
dismissed by the Division Bench consisting of R.M.
Lodha, (as His Lordship then was) and J.P.
Devadhar, JJ. on 7-6-2005. The ingenuity of the
petitioner did not stop their. The petitioner
filed present Review Petition on 2-9-2005, but did
not take steps to move the Review Petition which is
filed in the year 2005 for all these years. In the
meanwhile, R.M. Lodha, J. (as His Lordship then
was) was transferred to Rajasthan High Court. It
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is required to be noted that no attempt was made by
the present Petitioner to move the Review Petition
before the same bench. Not only that all
throughout the Petitioner has never moved this
Court for taking the Review Petition on board and
the execution proceedings are delayed probably
because of pendency of this Review Petition. It is
only at the request of the other side, the Review
Petition is circulated and that is how the Review
Petition has been placed before us.
7. The
learned counsel for the petitioner
vehemently submitted that the Division Bench while
deciding the Appeal No.423 of 2005 has not taken
into consideration the important aspect that the
cheques in question issued by the company were
blank cheques. The learned counsel for the
petitioner submitted that so far as present
petitioner is concerned, he was one of the
directors of the company and he had given his
personal guarantee which was conditional one, to
the effect that in case cheques issued by the
company are bounced back, then the petitioner was
to reimburse the amount to the respondent –
original plaintiff on his own. The learned counsel
for the petitioner submitted that subsequently it
has come to the notice of the petitioner that the
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company had merely issued blank cheques. It is
submitted that since the company had issued only
blank cheques, the petitioner was not liable to
make any payment on return of the cheques. It is
submitted that under these circumstances under
Order 37 Rule 4 of the Code of Civil Procedure, the
Petitioner can be said to have made out a special
case for setting aside the decree and the
petitioner should be given an opportunity now to
defend the Suit by granting unconditional leave to
defend.
8. We have heard the learned counsel for the
petitioner at length. We have also gone through
the original order passed by the Division Bench on
7-6-2005. It is required to be noted that
initially conditional leave was granted to the
defendant by asking him to deposit Rs.47,00,000/-,
which order was confirmed in the appeal and SLP
against the same was also dismissed by the Hon’ble
Supreme Court. In spite of the same, the present
petitioner failed to deposit any amount and in
these circumstances, ultimately decree was passed
against the petitioner – original defendant. The
aforesaid decree was passed as back as on 12-2-2001
and subsequently an application was moved under
Order 37 Rule 4 of the Code of Civil Procedure for
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setting aside the said decree on the ground that
special circumstances exists for setting aside the
decree, as the defendant subsequently came to know
that the cheques issued by the company were blank
cheques. At this stage, it is required to be noted
that this very point was even canvassed before the
Division Bench in Appeal No.423 of 2005. The
Division Bench in para 2 and 5 of its order,
observed as under :
“2. The learned counsel for the
appellant contended that the summary suit
filed by the present respondent against the
appellant herein was
cheques.
founded on blank
At the time of hearing of the
summons for judgment, the case of the
respondent was that the cheques were blank
cheques but the learned Trial Judge did not
consider the said aspect at the time of
hearing of summons for judgment. But
thereafter in the criminal proceedings
there was an admission by the respondent
that the cheques were blank and even in
response to the notice of motion under
Order XXXVII Rule 4 C.P.C., there is
admission by the respondent that the
cheques were blank. In this background,
the learned counsel submitted that the case
indicating special circumstances for
setting aside the decree under Order XXXVII
Rule 4 C.P.C. was clearly made out and the
learned Single Judge ought to have set
aside the decree. The learned counsel
relied upon the Division Bench judgment of
this court in the case of Ramchandra Dhondu
Dalvi V/s. Vithaldas Gokuldas (AIR 1964
Bombay 251).
5. In our considered view for non
compliance of the order granting
conditional leave to defend to the
appellant, if the decree came to be passed,
the same cannot be faulted. The facts
aforenarrated do not make out special
circumstances under Order XXXVII Rule 4
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C.P.C. for setting aside the decree dated
February 12, 2001.”
9. It is clear that this very point was argued
by the petitioner before the Division Bench that
the cheques in question were blank cheques and,
therefore, the decree should be set aside under
Order XXXVII Rule 4 C.P.C. The Division Bench
after considering the arguments has negatived the
said contention. In our view, attempt of the
petitioner is nothing but to argue the said Appeal
denovo before us. The powers of this Court under
Order XXXVII
ig of the C.P.C. are limited to the
extent provided under the Code. This Court is not
expected to verify the correctness of the order
passed by the earlier Division Bench. If the
present petitioner had any grievance against the
aforesaid order, his remedy was to challenge the
said order before the Hon’ble Supreme Court. It is
not the case of the petitioner that after the order
of Division Bench dated 7-6-2005 any additional
material has come to his notice. The main argument
advanced in this review is only on the point that
the cheques issued by the company were blank
cheques. The earlier Division Bench has considered
this aspect and rejected the same. In our view the
petitioner is trying to delay the proceedings by
not allowing the other side to execute the decree
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passed seven years back on the pretext that the
review petition is pending.
10. As noted earlier, eventhough this review
petition was filed as back as on 2-9-2005, no
attempt was made by the petitioner to place the
same before the Court and it is only at the request
of the other side that the review petition is taken
up for hearing. No attempt was made to move the
review petition before the bench which decided the
Appeal. The learned counsel for petitioner submits
that
he has no explanation to offer for the delay
in this behalf.
11. Be that as it may, we are convinced that
the present review petition is filed with a view to
delay the execution of decree. The present review
petition is nothing but an abuse of process of law.
With a view to see that such type of vexatious and
frivolous litigation should not be filed, while
dismissing the review petition, we direct the
petitioner to pay compensatory cost of Rs.25,000/-
to the respondent. Such costs should be paid to
the respondent within a period of two weeks from
today.
12. The review petition is accordingly
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dismissed with costs as quantified above.
13. At this stage, learned counsel for the
petitioner has submitted that the petitioner is
willing to deposit entire amount of Rs.47,00,000/-
as ordered by this Court on 25-10-1999. This
request is too stale to be considered by this Court
at this stage, as option was available to the
petitioner to comply with the same, when the
Division Bench earlier granted time to deposit the
amount within eight weeks. Even otherwise, when
the earlier
Division Bench has already dismissed
the Appeal, which was filed against the order of
granting conditional leave, the prayer made before
us is not maintainable.
(P.B. Majmudar, J.)
(J.P. Devadhar, J.)
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