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UCO Bank Vs. Iyengar Consultancy Services Pvt. Ltd. [1993] INSC 359 (17 September 1993)

Verma, Jagdish Saran (J) Verma, Jagdish Saran (J) Yogeshwar Dayal (J)

CITATION: 1994 SCC Supl. (2) 399

ACT:

HEAD NOTE:

ORDER

1. Leave granted.

2. Heard on merits.

3. A suit for specific performance was filed by the respondent, M/s lyengar Consultancy Services Pvt. Ltd., against the appellant United Commercial Bank in the Delhi High Court. The suit was listed on 29-7-1988 for filing documents and their admission or denial, when the defendant- Bank remained absent. It was + Arising out of SLP (Civil) No. 13246 of 1992 400 then listed before the learned Single Judge of the High Court on 12-8-1988, when the defendant was again absent.

The learned Single Judge proceeded ex parte against the defendant on that date and the suit was then listed on 9-9- 1988 as a short-cause for final disposal. On that day also, none appeared for the defendant in the suit. Accordingly, the learned Single Judge decreed the suit ex parte on that date. Thereafter on 9-10-1988, an application for setting aside the ex parte decree was made under Order IX Rule XIII CPC by the defendant-Bank's counsel Shri A.N. Tewari, supported by his own affidavit. That application was dismissed by the learned Single Judge on 6-7-1989.

Thereafter, a review application was filed by Shri A.N. Tewari, which too was dismissed on 31-7-1991. It was only thereafter that the defendant-Bank learnt of the ex parte decree passed against it. Accordingly, it filed an appeal before the Division Bench of the High Court through another counsel on 30-4-1992 against the orders dismissing the application for setting aside the ex parte decree as well as the review application. This appeal was dismissed on 23-9- 1992 by the Division Bench as time barred as well as on merits. Hence this appeal by special leave.

4.The appellant has adduced sufficient material to support its submission that it was not aware of the passing of the ex parte decree and that having engaged Shri A.N. Tewari as its counsel, on the basis of the information given by the counsel from time to time, it was under the impression that the suit was pending and was being properly contested. It has also been shown from these documents that it was much after the passing of the ex parte decree that the appellant came to know the factual position and it was then that the appellant took further steps by engaging another counsel in place of Shri A.N. Tewari.

5.In view of the facts and circumstances emerging from the material placed before us, we are satisfied that this is a fit case for setting aside the ex parte decree passed by the learned Single Judge of the High Court on 9-9-1988 and the subsequent orders dismissing the application for setting aside the ex parte decree and the review application together with the order of the Division Bench dismissing the appeal. The parties are required to be relegated to the position as on 29-7-1988. This is necessary in view of the fact that 29-7-1988 had been fixed in the Court as the last chance for filing of documents and admission and denial thereof by the parties.

6.For the aforesaid reasons, the appeal is allowed. The ex parte decree dated 9-9-1988, the orders dismissing the application for setting aside the ex parte decree and the review application as well as the order of the Division Bench of the High Court dismissing the appeal are set aside and the parties are relegated to the position which existed immediately prior to 29-7-1988. Consequently, the parties will have one last chance only for filing of documents and admission and denial thereof. No further opportunity for this purpose would be granted by the High Court. The parties shall appear in the High Court on 11-10-1993 for taking further directions in this behalf, including the fixing of the date for filing the documents and admission and denial thereof. The appellant shall pay Rs 10,000 as costs to the respondent on or before 11-10-1993.

7.In the facts and circumstances of this case, we also request the High Court to dispose of the suit as expeditiously as possible.

401 8.In view of the statement made by the learned Solicitor General that proceedings have been initiated against Shri A.N. Tewari in the Bar Council as well as in Court, the notice issued to Shri A.N. Tewari in this matter is discharged.

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