Bank Vs. Iyengar Consultancy Services Pvt. Ltd.  INSC 359 (17 September 1993)
Jagdish Saran (J) Verma, Jagdish Saran (J) Yogeshwar Dayal (J)
1994 SCC Supl. (2) 399
Heard on merits.
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.
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.
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.
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.
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
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
the facts and circumstances of this case, we also request the High Court to
dispose of the suit as expeditiously as possible.
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