LexSHANTILAL GULABCHAND MUTHA versus TATA ENGINEERING & LOCOMOTIVE CO. LTD. & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2013] 2 S.C.R. 432
A
SHANTILAL GULABCHAND MUTHA
v.
TATA ENGINEERING & LOCOMOTIVE CO. LTD. & ANR.
(Civil Appeal No. 6162 of 2005)
B
MARCH 18, 2013.
c
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
CODE OF CIVIL PROCEDURE, 1908:.
0. 8, r.10 - Judgment on failure of defendant to file written
statement- Held: Relief under 0. 8, r. 10 is discretionary, and
court has to be more cautious while exercising such power
where defendant fails to file written statement -Court must be '
D satisfied that there is no fact which need to be proved in spite
of deemed admission by defendant, and court must give
reasons for passing such judgment - In the instant case, trial
court has not examined as to whether the suit was filed within
limitation and whether on the basis of pleadings, the relief
E granted by it could have been granted - Court did not even
consider it proper to examine the case prima facie before
passing the decree - As trial court failed to meet the
parameters laid down by Supreme Court to proceed under 0.
8 r. 10, judgment and decree passed by it is set aside and
F the case is remanded to it to decide afresh - Appellant is at
liberty to file written statement within the period provided.
Ba/raj Taneja & Anr. v. Sunil Madan & Anr. 1999 (2)
Suppl. SCR 258 = AIR 1999 SC 3381; Bogidhola Tea &
Trading Co. Ltd. & Anr. v. Hira Lal Somani, 2007 (12) SCR
G 1153 = AIR 2008 SC 911; Ramesh Chand Ardawatlya v. Anil
Panjwani 2003 (3) SCR 1149 = AIR 2003 SC 2508 • relied
on.
H
432
SHANTILAL GULABCHAND MUTHA v. TATA
ENGINEERING & LOCOMOTIVE CO. LTD.
433
Case Law Reference:
1999 (2) Suppl. SCR 258
relied on
2007 (12) SCR 1153
relied on
2003 (3) SCR 1149
relied on
para 3
para 5
para 5
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6162 of 2005.
A
B
From the Judgment & Order dated 22.06.2005 of the High
Court of Judicature at Bombay in Appeal No. 478 of 2005 in
Notice of Motion No. 503 of 2004 in Suit No. 1924 of 1998.
C
Prasenjeet Keswani, Pawan Kr. Bansal {for V.D. Khanna)
for the Appellant.
Debmalya Banerjee (for Manik Karanjawala) for the
.. Respondents.
D
The following order of the Court was delivered
ORDER
1. This appeal has been preferred against the judgment
E
and order dated 22.6.2005 of the High Court of Judicature at
Bombay, passed in Appeal No.478 of 2005 in Notice of Motion
No.503 of 2004 in Suit No.1924 of 1988.
2. Facts and circumstances giving rise to this appeal are:
A. That the appellant had purchased five Tata Diesel
F
Vehicles from the respondent No.1 for a sum of Rs.9,58,913/-
which was to be paid in 8 installments through respondent No.2
as per repayment schedule. The appellant alleges that eight
Bills of Exchange were drawn by the respondent no.1 upon the
respondent no.2 - banker of the appellant and by way of which
G
the entire amount was paid. Respondent no.1 filed Suit
No.1924 of 1988 on 2.6.1988 against the appellant as well as
the banker for recovery of sum of Rs.5,66,000/- alongwith
interest. Summons were served upon the appellant and he
entered appearance through advocate to contest the suit.
H
434
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A However, subsequently under the impression that the entire
amount had already been paid, he did not file the written
statement. The High Court decreed the suit vide judgment and
decree dated 12.11.2003 under the provisions of Order VIII Rule
10 of the Code of Civil Procedure 1908, (hereinafter referred
B to as 'CPC') without considering any issue involved therein or
taking note of the pleadings in the plaint itself.
B. Aggrieved, the appellant took out a Notice of Motion
bearing no.503 of 2004 in the said suit for setting aside ex
parte decree dated 12.11.2003, however, it stood rejected vide
C order dated 10.12.2004 holding it to be not maintainable in view
of division bench judgment of the Bombay High Court wherein
it had been held that any decree passed under Order VIII Rule
10 CPC could not be subjected to the application under Order
IX Rule 13 CPC.
D
C. Aggrieved, the appellant filed the appeal which has
been dismissed vide order dated 22.6.2005 concurring with the
learned Single Judge.
Hence, this appeal.
E
3. We have heard Shri Prasenjit Keswani, learned counsel
for the appellant and Shri Debmalaya Banerjee, learned
counsel for respondent no.1- and perused the record.
4. This Court in Ba/raj Taneja & Anr. v. Sunil Madan &
Anr., AIR 1999 SC 3381 dExcerpt shown. Read the full judgment & AI analysis in Lexace.