:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1003 OF 2005 IN NOTICE OF MOTION NO.2404 OF 2004 IN SUMMARY SUIT NO.3164 OF 2001 M/s. Dev Sha Corporation a registered partnership firm, carrying on business at 12/14, Kazi Sayed Street, 2nd floor, Masjid Bunder, Mumbai-400 009 ..Appellants V/s Shree Ram Mills Ltd. a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Ganpatrao Mumbai- 400 013 Kadam Marg, Lower Parel, ..Respondents Shri J.P. Sen with M.A. Shah i/b A.G. Shah for the Appellants Shri G. Joshi with Ms Pratibha Mehta i/b Little and Co. for the Respondents CORAM ; S.A.BOBDE AND A.A.SAYED, JJ.
DATE : 24TH MARCH, 2009
ORAL JUDGMENT (PER S.A.BOBDE, J.)
1. This appeal is preferred by the plaintiffs
against the judgment of the learned Single Judge
dated 17-6-2005 setting aside the exparte decree
passed in his favour in a suit under Order 37 Rule 4
of Code of Civil Procedure.
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2. Shri Joshi, the learned Counsel for the
respondents has raised a preliminary objection to the
tenability of the appeal on two grounds. (a)
According to the learned Counsel for the respondents,
there is no provision in the Code of Civil Procedure
including Order 43, for an appeal from an order
setting aside a decree in a summary suit. Further,
such an order not being a judgment, an appeal does
not lie from it under Clause 15 of the Letters Patent
of this Court. (b) the appeal is not tenable because
the appellants
ig have received the benefits of the
order setting aside exparte decree by accepting costs
imposed on the respondents thereby and are therefore,
not entitled to maintain the appeal in view of law,
laid down by the Supreme Court in Bhau Ram V. Baij
Nath Singh and others, reported in AIR 1961 S.C.
1327.
3. The appellants sued the respondents for a sum
of Rs. 5,94,597.99. On 14-1-2002 the Summons for
Judgment was served on them. On 3-6-2003, the Court
granted conditional leave to the respondents to
defend the suit on deposit of sum of Rs.
5,94,597.99, within a period of 4 weeks. On 6-2-2004
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the Court passed an exparte decree against the
respondents on failure to deposit the amount.
4. On 31-07-2004 a warrant of attachment was
issued. This was stayed on 30-8-2004, on the
respondents depositing a sum of Rs. 21,91,675/-.
5. The respondents then took out the notice of
motion for setting aside the order granting
conditional leave to defend the suit dated 6-3-2003
and exparte decree dated 6-2-2004. The learned Trial
Judge declined to set side the order granting
conditional leave to defend the suit but however
granted the other prayer and set aside the exparte
decree and granted extension of time to deposit the
amount as ordered earlier. The plaintiffs have filed
the present appeal against this order.
6. As regards the first objection to
maintainability there is no doubt that the order
setting aside a decree under order 37 Rule 4 of the
Code of Civil Procedure is not appealable under Order
43 Rule 1 of CPC. However, it appears that such an
order setting aside a decree under Order 37 Rule 4
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has been held to be a judgment within the meaning of
clause 15 of the Letters Patent. In Shah Babulal
Khimji V. Jayaben D. Kania and another,
another reported in
1981 SC 1786. The Supreme Court observed as follows:
“Similarly, suppose the trial Judge passes an
order setting aside an exparte decree againstthe defendant, which is not appealable under
any of the clauses of Order 43, Rule 1 though
an order rejecting an application to set aside
the decree passed exparte falls within Order
43, Rule 1, clause (d) and is appealable, theserious question that arises is whether or not
the order first mentioned is a judgment within
the meaning of Letters Patent. The fact,however, remains that the orders setting aside
the exparte decree puts the defendant to a
great advantage and works serious injustice to
the plaintiff because as a consequences of theorder, the plaintiff has now to contest the
suit and is deprived of the fruits of the
decree passed in his favour. In these
circumstances, therefore, the order passed by
the trial Judge setting aside the exparte
decree vitally affects the valuable rights ofthe plaintiff and hence amounts to an
interlocutory judgment and is therefore,appealable to a larger Bench.”
Though the aforesaid observation are in respect of an
order under order 9 Rule 13 we are of the view that
they apply with equal force to an order setting aside
the decree under order 37 Rule 4. We therefore, hold
that an order setting aside a decree whether on the
ground that it is exparte or otherwise is a judgment
within the meaning of clause 15 of the Letters Patent
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of this Court and is therefore appealable under that
clause.
7. This takes us to the next objection pertaining
to tenability viz. that the appeal is not tenable
because the appellants have received the benefits
under order setting aside the exparte decree and are
therefore, not entitled to file this appeal. There
is no dispute that the learned Judge imposed costs of
Rs. 15,000/- while setting aside an exparte decree
and extending
ig the time to deposit the amount. The
order was passed on 17-6-2005. The respondents
tendered a cheque dated 27-6-2005 under a letter
dated 28-6-2005. There is no dispute that the letter
alongwith the cheque has been received by the
appellant. The appellants retained the cheque
without demur and without raising any objection and
filed an appeal on 17-8-2005 i.e. after a period of
about two months. The appeal was placed before a
Division Bench of this Court. The Court admitted the
appeal on 1st December,2005. Apparently, since an
objection was raised by the respondents that the act
of accepting the cheque and filing the appeal amounts
approbation and reprobation the appellant returned
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the cheque under letter 29-11-2005. Apparently the
cheque was sent back by the respondents and the
appellants have retained the cheque since then. Shri
Joshi, the learned Counsel for the respondents
submitted that it is a settled law that it is not
permissible to approbate or repprobate by adopting
one part of the order and refusing another part, when
the order is intended to take effect in its entirety.
The Supreme Court in Bhau Ram V. Baij Nath Singh and
others,
others reported in AIR 1961 S.C. 1324, observed as
follows:-
“In support of his contention, learned Counsel
has relied upon the well-known case of Tinkler
v. Hilder, (1849) 154 ER 1176 and other cases
which follow that decision or which proceed on
the same reason as that in Tinkler’s case,
(1849) 154 ER 1176. Those decisions are :
Banku Chandra v. Marium Begum, 21 Cal WN 232
: (AIR 1917 Cal 546 )(SB); Ramendramohan V.
Keshabchandra, ILR 61 Cal 433: (AIR 1934 Cal
554); Mani Ram V. Beharidas, (S) AIR 1955
Raja 145; Veeraswami Pillai V.
Kalyanasundaram Mudaliar, AIR 1927 Mad 1009;
Venkatarayudu V. Rama Krishnayya, AIR 1930Mad 268 and Pearce v. Chaplin, (1846) 115 ER
1483.
“The two English decisions just referred to
and some of the Indian decisions were
considered in AIR 1930 Mad 268. Dealing withthem Venkatasubba Rao, J., observed as
follows:
“What is the principle underlying these
decisions? when an order shows plainly that::: Downloaded on – 09/06/2013 14:27:05 :::
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and that several parts of it depend upon each
other, a person cannot adopt one part andrepudiate another. For instance, if the Court
directs that the suit shall be restored on the
plaintiff paying the costs of the opposingparty, there is no intention to benefit the
latter, except on the terms mentioned in the
order itself. If the party receives costs,
his act is tantamount to adopting the
order……..According to Halsbury this ruleis an application of the doctrine ‘that a
person may not approbate and reprobate’ (13
Halsbury, para 508)….In other words, to
allow a party, who takes a benefit under such
an order, to complain against it, would be topermit a breach of faith.”
It
case
may
that
be noted that Their Lordships held
the benefit that was received
in
by
that
the
appellants was of withdrawing the pre-emption price
and that such a benefit was not de hors the decree
and therefore, the appellant could not be denied the
statutory right to appeal. However, there is no
doubt that Their Lordships approved the statement of
law that parties are not entitled to take a benefit
such as receiving costs which would tantamount to
adopting the order and then challenging the order.
8. Shri Sen the leaned Counsel for the
appellants, submitted that the appellants cannot be
said to have received the benefits under the order,
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merely because they have accepted the cheque.
According to the learned Counsel the appellants,
could be said to have received the benefits only if
they had encashed the cheque, apart from accepting.
It is not possible to accept the contention of Shri
Sen. The intention of the parties in such a matter
is crucial. It is clear that the respondents paid
the costs imposed on them by way of a cheque which
the appellants accepted and retained without demur.
There was absolutely no attempt on the part of the
appellant
to return the said cheque. In fact, they
proceeded to file an appeal about two months after
receiving the costs by way of cheque. It is obvious
that the appellants intended to receive the benefits,
and in fact did so, under the order setting aside the
exparte decree. That apart, there seems to be little
doubt that receiving a cheque amounts to a
conditional acceptance of payment. In Commissioner
of Income Tax,Bombay South v. Messers Ogale Glass
Works Ltd.,
Ltd reported in AIR 1954 SC 429, the Supreme
Court relied on Byles on Bills, 20th Edition P. 23
and the position is summarised pithily as follows:-
“A cheque, unless dishonoured, is payment.”
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Accordingly their Lordships concluded as follows:-
” In the case before us none of the cheques
has been dishonoured on presentation and
payment cannot, therefore, be said to have
been defeated by the happening of the
condition subsequent, namely dishonour by
non-payment and that being so there can be no
question, therefore, that the assessee did not
receive
ig payment by the receipt of thecheques.”
The payment thus takes effect from the delivery of
the cheque but may be defeated for failure of the
condition i.e., non payment on maturity. We thus
have no hesitation in coming to the conclusion that
the appellants have received the benefits of the
order and by accepting the cheque towards the costs
of Rs.15,000/- from the respondents and therefore,
are not entitled to maintain the appeal in view of
the observations of the Supreme Court in Bhau Ram V.
Baij Nath Sing and others, reported in AIR 1961 S.C.
.
1327.
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9. In the result the appeal is dismissed. There
shall be no order as to costs.
(S.A.BOBDE, J.)
( A.A. SAYED, J.)
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