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Judgment
V.K. Shali, J.
IA Nos. 16306/2009 (U/o IX Rule 9 CPC for restoration of Suit) and 16404/2009 (U/o IX Rule 9 CPC for restoration of IA No. 16306/09)
This order shall dispose of two applications bearing Nos. IA Nos. 16306/2009 (U/o IX Rule 9Code of Civil Procedure ) and 16404/2009 (U/o IX Rule 9Code of Civil Procedure ). The first application pertains to the restoration of the suit while as the second application pertains to the restoration of the application itself which was also dismissed for non-prosecution.
Briefly stated the facts of the case are that the plaintiff has filed the present suit for permanent injunction against the Defendants. The case set up by the plaintiff was that the Defendants illegally tried to invoke the bank guarantee purported to have been issued by the plaintiff in favour of the Defendants. It may be pertinent hereto mention that originally when the suit was filed by the plaintiff, he had made a mention of four bank guarantee Nos. 44/78, 44/267, 43/173 and 43/206 for Rs. 42,411/-, 77,934, 3,53,337/- and 4,10,641/- respectively. The allegations were that the Defendants were trying to invoke the performance bank guarantee after the expiry of statutory period of 12 or 18 months as the case may be. This Court vide order dated 06.10.2004 placing reliance on the case titled Larsen and Toubro Limited Vs. Maharashtra State Electricity Board and others, passed an ex-parte ad interim stay against the encashment of the bank guarantees. During the pendency of the suit, the plaintiff has filed an application bearing Nos. 1964/2005 for amendment of IA No. 6755/2004 and IA 1965/2005. These applications came up for hearing on 16.03.2005. It was alleged in the application that on account of an inadvertent mistake in the interim application, the plaintiff instead of mentioning the bank guarantee numbers has mentioned the invoice numbers and further by mistake he omitted to mention one bank guarantee bearing No. 44/163 which was sought to be added by the Defendants.
This Court had allowed the application seeking amendment of the plaint and of the interim order dated 06.10.2004 by extending it to the fifth bank guarantee bearing No. 44/163 vide order dated 16.03.2005.
After the service to the Defendants, the issues were framed and the plaintiff was permitted to adduce evidence although the application was pending for adjudication. Further, the parties were taking adjournments from time to time as they wanted to settle the matter.
On 08.12.2009, the matter was passed over at the request of one Mr. Gurjeet Singh who used to appear on behalf of the plaintiff, but in the second call neither the said person Mr. Gurjeet Singh appeared nor the counsel appeared as a consequence of which, the suit was dismissed for non-prosecution and the interim orders were vacated.
The plaintiff filed an application bearing IA No. 16306/2009 which was listed on 15.12.2009. Since there was no appearance on 15.12.2009 also, accordingly, the application for restoration of the suit to its original number was also dismissed for non-prosecution.
The plaintiff has stated that on 15.12.2009, the application bearing IA No. 16306/2009 was shown in the third supplementary list and on account of an inadvertent mistake the plaintiff did not notice the listing of the same. Consequently by the time, the plaintiff realized that the application had been listed, the order of dismissal for non-prosecution of the application had already been passed.
The plaintiff filed yet another application bearing No. 16404/2009 which came to be listed on 18.12.2009 and it is in respect of this that the Defendants have chosen to file the reply.
The case which has been set up by the plaintiff in the application seeking restoration of the suit is that on 08.12.2009 when the matter was listed the counsel for the plaintiff had to catch a flight to Chandigarh on account of some urgent hearing of a batch of writ petitions as a consequence of which he could not appear while as at that time when the matter was called the representative Mr. Gurjeet Singh could also not be present. It is urged that on account of reasons which were beyond the control of the plaintiff the suit has been dismissed for non-prosecution and the application bearing No. 16404/2009 which was listed on 15.12.2009 also got dismissed on account of the fact that it was shown in the third supplementary.
The plaintiff has now filed another application for restoration of the suit, and accordingly, the plaintiff has submitted that he may be permitted to contest the suit to adduce the evidence for the purpose of proving the case.
The Defendants contested the claim of the plaintiff by filing the reply. The Defendants have averred to the allegedly manipulative method in which the plaintiff has got the interim order regarding encashment of the bank guarantee extended to the fifth bank guarantee i.e. 44/163 one, where the bank guarantee itself had been invoked on 16.03.2005 and the payment of the said bank guarantee amount was also received by the Defendants on 29.03.2009.
So far as the merits of the restoration of the application is concerned, it was contended that the ground on which the restoration is sought by the learned Counsel for the plaintiff is that he had to travel to Chandigarh by a flight, but he neither filed his affidavit nor the documentary evidence by way of boarding pass, ticket etc. to indicate that he actually travelled on the said date. It is alleged on account of these reasons that the plea of the plaintiff does not constitute a ''sufficient cause'' and consequently, the application for restoration bearing IA No. 1964/2005 as well as the suit may not be restored. Mr. Anip Sachthey, the learned Counsel for the Defendants also referred to the judgment of the Apex Court to urge that even if the story which has been set up by the plaintiff is accepted to be correct, then also he should be put to heaviest possible cost in order to ensure that the case proceeds expeditiously.
I have heard the learned Counsel for the parties and perused the record.
There is no doubt that the suit has been dismissed for non-prosecution on 08.12.2009. The first application which was filed by the plaintiff came up for hearing on 15.12.2009 on which date neither the plaintiff nor his counsel appeared. Even on the date of dismissal of the suit i.e. 08.12.2009 there was no appearance despite the case having been passed over. The plea which has been set up by the plaintiff for restoration of the case is that the counsel for the plaintiff had to go to Chandigarh urgently. Even if the counsel for the plaintiff had to go to Chandigarh urgently, the minimum which was expected of him was that he could have ensured that the person, who was appearing on behalf of the plaintiff would instead of getting the matter passed over, would bring it to the notice of the Court, at the very first instance itself, that the counsel is to go out of town which has not been done, and therefore, this story set up by the plaintiff does not inspire confidence.
So far as the contention of the learned Counsel for the Defendants is concerned, the plaintiff ought to have filed the affidavit of his counsel that he had gone to Chandigarh and since this has not been done, therefore, this story which has been set up by the plaintiff does not prime facie inspire confidence and in any case does not constitute a ''sufficient cause''.
Alternatively, it has been contended by Mr. Anip Sachthey, learned Counsel for the Defendants that even if the application is restored, the plaintiff may be put to heaviest possible cost in order to ensure that this is not a method to be adopted by the plaintiff to defeat the rights of the Defendants.
No doubt, ideally if the counsel is taking the responsibility of the dismissal of the suit on himself on account of his non-appearance which was occasioned because of certain urgent and emergent work, he ought to have filed an affidavit or produce prima facie a documentary evidence in this regard. This has not been done in the instant case, but at the same time one cannot lose sight of the fact that the issues in the instant case have already been framed, the plaintiff has also adduced evidence and the fact that case has been pending for adjudication in Court for more than six years and the plaintiff should not be ousted only on the technicalities and this ought not to be a ground for denying the decision of the case on the merits. I have gone through the judgment of the Apex Court in case titled Shibanand Mukherjee v. Gopal Chandra De (2005) 11 SCC 557, where a cost of Rs. 50,000/- was imposed on the defaulting party for restoration of the matter.
I feel that in the instant case also the interest of justice would be met in case the suit is restored to its original number and permitted to culminate into a finding on merit. Accordingly, I hold that the plaintiff has been able to show a ''sufficient cause'' for the non-appearance on 08.12.2009 and 15.12.2009 when the suit and the application were dismissed in default and accordingly I allow the IA bearing No. 16404/2009 and restore the suit and the IA bearing No. 16306/2009, but this will be subject to cost of Rs. 25,000/-.
List on 08.04.2011 for further proceedings.