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TMI Blog2007 (8) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... Jigar M. Patel, learned advocate waived the service of rule on behalf of the respondent. 2. As regards condonation of delay is concerned, on behalf of respondent, one Shri Bhanubhai S. Patel has filed affidavit-in-reply dated 20th Nov.2006, contesting the application for condonation of delay. 3. I have heard Ms. Dharmishta Raval, learned advocate appearing on behalf of the appellant and Mr. D.C. Dave, learned advocate on behalf of respondent, who have made several submissions in this behalf. However, before I consider the application for condonation of delay, I would like to narrate relevant facts about the main appeal in this behalf. 4. Shri Bhanubhai S.Patel, respondent (original plaintiff) had filed Summary Suit No. 655 of 2004 on 27.2.2004 before the City Civil Court, Ahmedabad, claiming Rs. 6,43,028/- from M/s. Pravin Ratilal Shares Stock Brokers Ltd.- original defendant. 4.1 In the suit, the plaintiff has contended that the original defendant - M/s. Pravin Ratilal Shares Brokers Ltd., is a Company registered under the provisions of the Indian Companies Act with its Registered Office at Ahmedabad. It has been contended that the plaintiff used to purchase and sell shares of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amber Judge, Court No.14, and the learned Chamber Judge passed a short order as under: Heard the Ld. advocate for the plaintiff. Though, the defendant has entered appearance pursis and filed vakalatnama but has not filed any leave to defend application. Under this circumstances, the averments made by the plaintiff in support of the claim made in the plaint along with the documents annexed with the plaint remain unchallenged and uncontroverted. Therefore,, there is no reason to refuse summons for judgment. Further, on perusal of the record it appears that the suit is well within time and this court has jurisdiction to entertain the present suit under the provisions of Order 37 of the CPC. The plaintiff has claimed interest @ 12% p.a. From the defendant. It seems that there is no contract for interest to be paid on outstanding amount as and when becomes due and payable. However, considering the nature of the suit transaction, the plaintiff is entitled to get interest @ 12% p.a. From the defendant. Under the circumstances, I pass the following final order: ORDER The suit is decreed with cost. The defendant shall pay the decretal sum of Rs. 6,43,028/- with interest @ 12% p.a. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith. 4.9 Being aggrieved and dissatisfied with the aforesaid order dated 10.3.2005, the defendant filed Misc. Civil Application No. 147 of 1995 before the City Civil Court, Ahmedabad. In the said application it was submitted that on 10.3.2005, the advocate appearing on behalf of the appellant had some personal difficulty. The advocate was to make an application seeking for adjournment. However, the appellant's advocate had to all of a sudden leave Ahmedabad and he could not make an application for adjournment. It was submitted that the civil suit should be restored and the ex-parte decree be set aside. Along with the said application, the affidavit of Shri Pankaj K. Pancholi, learned advocate dated 19.12.2005 has also been filed in this behalf in support of their contention. 4.10 The aforesaid Misc. Civil Application was heard by the learned City Civil Judge, Court No.13, Ahmedabad, which came to be dismissed by his judgment and order dated 13.9.2006. 5. It was also stated that when the appellant challenged the order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 restraining the present opponent from withdrawing Rs. 7,31,108/-deposited by the present appellant before the City Civil Court. 5.3 Thereafter on 23rd March 2007, the appellant filed a note before the Registrar requesting that the present First Appeal and the Special Civil Application No. 25686 of 2006 be heard together. Subsequently, in view of the order of the Hon'ble Chief Justice, these matters have been placed before this Court. 5.4 No doubt, condonation of delay is a discretion awardable to the Court and the Court should take a liberal approach in this behalf. Whereas, in this case, it has been stated that there is a gross delay in filing the First Appeal and this Court finds it not necessary to condone the delay. 5.5 At the time of hearing of the appeal, Ms. D.N. Raval, learned advocate appearing for the appellant has submitted that though the purshis has been submitted, in the facts and circumstances of the case, the present application for condonation of delay filed under Section 5 of the Limitation Act, the Court should take a liberal approach in this behalf. The learned advocate has relied upon the decision of the Hon'ble Apex Court in the case of Collector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the case of Mst. Katiji (supra) and also held that liberal approach has to be taken in this behalf. 5.7 The learned advocate has further stated that it is no doubt true that the Court has to consider the merits of the matter but the fact is that the plaintiff has filed the suit for claiming the amount in connection with the Shares purchased by the plaintiff from the defendant. The learned advocate submitted that in spite of the provisions of Sec.20A of SEBI Act, which specifically ousts the jurisdiction of the Civil Court, an appeal can be preferred to the Securities Appellate Tribunal and through the Stock Exchange the matter statutorily has to be referred to arbitration and all these aspects have not been considered by the trial Court. 6. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 10.3.2005 passed by the learned trial Judge, the present appeal has been filed on 7.10.2006 along with Civil Application No.11730 of of 2006 for stay. The First Appeal has been filed on the ground that the City Civil Court has no jurisdiction to pass the judgment and decree in view of Section 20A of the Securities and Exchange Board of India Act, 1992 (hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x parte decree is passed has two remedies, viz. To file an application for setting aside the ex parte decree and/or to prefer an appeal against the ex parte decree. The person against whom the ex parte decree is passed can avail of aforestated remedies simultaneously, i.e. He can prefer an application for setting aside the ex parte decree and at the same time he can prefer an appeal against the ex parte decree. If the person against whom an ex parte decree is passed has filed an application for setting aside the ex parte decree, he has not to wait for filing an appeal against ex parte decree till his application for setting aside the ex parte decree is decided. Therefore, it is submitted that the applicant could have preferred an appeal within a period of 30 days from 10.3.2005 on which an ex parte decree was passed against him. As a matter of fact, the applicant, having preferred the remedy of submitting an application for setting aside the ex parte decree under Order 37, Rule 4 of CPC and thereby not preferring along with same, an appeal against the ex parte decree, has waived its right to prefer to prefer an appeal and hence, the only remedy available to the applicant was to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft without a remedy and the ex parte decree obtained by the opponent is not set aside. 10.6 It is therefore submitted that the First Appeal has been filed because the applicant believes that the City Civil Court has no jurisdiction to entertain the suit as a result of the provisions of Section 20A of the SEBI Act and therefore, the decree passed is without jurisdiction, illegal and deserves to be set aside. Section 20A of SEBI Act is reproduced as under: 20A. Bar of Jurisdiction No order passed by the Board of the adjudicating officer under this Act shall be appealable except as provided in section 15T or section 20 and no civil court shall have jurisdiction in respect of any matter which the Board or the adjudicating officer is empowered by, or under, this Act to pass any order and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any order passed by the Board or the adjudicating officer by, or under, this Act. 10.7 The opponent in his reply has submitted that the delay in preferring the appeal cannot be condoned as the CPC or the Limitation Act does not have any provision for excluding the time spent in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 would be barred. This specific provision mad by the legislature clearly indicates that the remedy available to a party under O.9 R.13 and the remedy available under S.96 of CPC are certainly two different and distinct remedies, but are not intended to confer any right as to the exercise thereof in succession. They are in the nature of independent, but alternative remedies. If an appeal under S.96 of the CPC has already been filed, the specific provision by way of an explanation of R.13 would bar an application under the said rule. To my mind it is equally clear that if an application under O.9, R.13 is pursued, and the same ultimately fails, an appeal under S.96 of CPC would also be barred. I, however, do not record this by way of laying down a proposition of law, inasmuch as the said question does not arise in the context of the facts of the present case. The maintainability of otherwise of the appeal under S.96 of the CPC would be a relevant question, only after the delay is condoned; until then, such an appeal does not exist in the eye of law. 12. What is material is that the petitioner pleads that the delay in filing the appeal occurred merely because he was pursuing the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been filed. In view of the same, when in this case from the facts which are set out earlier, it emerges that in the Summary Civil suit filed in February 2004, the Court had issued Summons on 5.4.2004 only and though the defendant appeared, but did not file reply and therefore, the trial Court passed ex parte decree without hearing the defendant in this behalf. The said decree has been challenged before this Court by the appellant and also filed application for restoration of the said decree and ultimately on 23.9.2006, the said application has been treated to be filed under Order 3u Rule 4 of the Code and has been rejected. 13.1 In the affidavit filed by Shri Pankaj K. Pancholi, learned advocate dated 19.12.2005 he has stated that he was to file the reply on 10.3.2005. However, it could not be filed due to some unavoidable circumstances and he could also not file application for adjournment of the case also. Ultimately, the decree has been passed without effective reply being filed by the defendant in this behalf. The appellant has also filed an application on 10.3.2005 stating that they were out of station and that the advocate also did not inform the defendant and hence th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s present. Though a request was made for adjournment on the ground that the defendant could not come from Delhi whereafter an application was filed by the plaintiff that he had closed his evidence. It was further contended that the burden to prove the additional issue rested on the defendant and if any evidence is to be adduced, he should adduce evidence first. It appears that the plaintiff was also not cross examined by respondent No.1. As the plaintiff was attending to the Court proceedings from Calcutta, a cost of Rs. 200/- was imposed on the defendants. It was further directed that if the costs were not paid, the right of cross examination will be closed. The matter was again posted on 7.10.1985 on which day again the counsel for the defendant was not present. Even the costs awarded against them was not paid. Having regard to the fact that the respondent No.1 was absent and did not cross examine the plaintiff; the case was directed to be posted ex parte against her and the right of cross examination was forfeited. The case was fixed for final argument on 11.10.1985. Yet again, on 11.10.1985 the plaintiff was present but the defendants were not. Allegedly, owing to strike of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations made by the Hon'ble Supreme Court, in paragraph Nos.25 and 26 which I have cited earlier hereinabove, will not be applicable in the present case. 15. In view of the same, the Hon'ble Supreme Court has considered the provisions of Order 9 Rule 13 of the Code and the peculiar facts and circumstances of the case, and therefore, the judgment of the Hon'ble Supreme Court is quite distinguishable in the facts of the present case. In that matter, the Hon'ble Supreme Court was also concerned with the principle of issue of estoppal and condonation of delay in filing the matter which is also not applicable in the facts of the present case. 16. The learned advocate has also submitted that the Civil Court has no jurisdiction and therefore, the principle of issue estoppal will not be applicable in this behalf. 17. As regards the judgment of this Court in the case of Harishbhai Chunilal Shah (supra) is concerned, the Court was concerned with a case where an ex parte decree was sought to be set aside by filing an application under Order 9 Rule 13 of the Code. This application was rejected on merits, and thereafter an appeal was preferred which was subsequently withdrawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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