Case Note & Summary
The case pertains to a suit filed by respondent No.1 (Bhavesha Suresh Goradia) against the appellant (Aviation Travels Pvt. Ltd.) and others seeking permanent injunction and compensation for trespass, nuisance, and damages. The suit was decreed ex-parte on 07.10.2003 as no written statement was filed. The appellant filed a Notice of Motion in 2018 to set aside the ex-parte decree, claiming that summons were never served and that the vakalatnama filed by an advocate was not authorized. The High Court dismissed the motion, noting that a vakalatnama had been filed by M/s. Narayanan & Narayanan on behalf of the appellant through a constituted attorney, K. Shrinivas Rao, who held a Power of Attorney dated 29.04.1993. The High Court also found that summons were served on the advocates. The Division Bench dismissed the appeal, and the review petition was also dismissed. The Supreme Court upheld these decisions, holding that the appellant had engaged counsel through a valid Power of Attorney and that service of summons on the advocate was sufficient. The Court noted the long delay of 15 years in challenging the decree and found no merit in the appeal.
Headnote
A) Civil Procedure - Service of Summons - Vakalatnama - Power of Attorney - Once a vakalatnama is filed by an advocate on behalf of a defendant, personal service of writ of summons is not required under Rule 79 of the Bombay High Court (Original Side) Rules, 1980 - The High Court correctly held that the appellant had engaged an advocate through a constituted attorney and the summons were served on the advocate - Held that the ex-parte decree was validly passed (Paras 10-13).
B) Civil Procedure - Ex-parte Decree - Setting Aside - Delay and Laches - The appellant took no steps for nearly 15 years after the ex-parte decree and only filed a notice of motion in 2018 - The High Court declined to set aside the decree on grounds of delay and lack of merit - Held that the appeal was misconceived (Paras 6-8).
Issue of Consideration
Whether the ex-parte decree passed against the appellant was liable to be set aside on the ground that the summons were not served upon the appellant and that the vakalatnama was not validly executed.
Final Decision
The Supreme Court dismissed the appeals, upholding the High Court's orders. The Court held that the appellant had engaged counsel through a valid Power of Attorney and that service of summons on the advocate was sufficient. The ex-parte decree was validly passed.
Law Points
- Service of summons
- Vakalatnama
- Power of Attorney
- Ex-parte decree
- Bombay High Court (Original Side) Rules
- Rule 79
- Rule 90
Case Details
Civil Appeal Nos. 1890-1891 of 2020 (Arising out of SLP(C) Nos.5374-5375 of 2019)
Mr. R.F. Totala for appellant, Mr. Shree Prakash Sinha for respondents No.1, 9 and 10
Aviation Travels Pvt. Ltd.
Bhavesha Suresh Goradia and Others
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Nature of Litigation
Civil suit for permanent injunction and compensation for trespass, nuisance, and damages.
Remedy Sought
Appellant sought to set aside ex-parte decree and be permitted to file written statement and defend the suit.
Filing Reason
Appellant claimed that summons were not served and that the vakalatnama was not authorized.
Previous Decisions
Ex-parte decree dated 07.10.2003 passed by Bombay High Court; Notice of Motion No.580 of 2018 dismissed on 19.04.2018; Appeal (Lodging) No.224 of 2018 dismissed on 09.07.2018; Review Petition (Lodg.) No.20 of 2018 dismissed on 26.10.2018.
Issues
Whether the ex-parte decree was liable to be set aside for lack of service of summons?
Whether the vakalatnama filed by the constituted attorney was valid?
Submissions/Arguments
Appellant argued that summons were never served at its registered address and that Rule 90 of Bombay High Court Rules was not followed.
Appellant contended that the Power of Attorney did not authorize K. Shrinivas Rao to sign vakalatnama and that no board resolution was passed.
Respondents argued that a valid vakalatnama was filed by the constituted attorney and summons were served on the advocates.
Ratio Decidendi
Once a vakalatnama is filed by an advocate on behalf of a defendant, personal service of writ of summons is not required under Rule 79 of the Bombay High Court Rules. The Power of Attorney executed by the Chairman and Managing Director of the appellant company authorized the constituted attorney to engage counsel and accept service.
Judgment Excerpts
The High Court has noted that on behalf of the appellant, M/s. Narayanan & Narayanan, Advocates has entered appearance and filed a vakalatnama duly signed by the constituted attorney of the appellant.
Rule 79 of the Bombay High Court Rules speaks of a waiver of the requirement of serving the writ of summons personally, if the advocate undertakes in writing to accept service of that writ of summons and to file a vakalatnama.
Procedural History
Suit No.2865 of 1994 filed by respondent No.1 in Bombay High Court. Ex-parte decree passed on 07.10.2003. Appellant filed Notice of Motion No.580 of 2018 on 02.02.2018 to set aside decree, dismissed on 19.04.2018. Appeal (Lodging) No.224 of 2018 dismissed on 09.07.2018. Review Petition (Lodg.) No.20 of 2018 dismissed on 26.10.2018. Supreme Court granted leave and dismissed appeals on 04.03.2020.
Acts & Sections
- Bombay High Court (Original Side) Rules, 1980: Rule 79, Rule 90
- Indian Partnership Act, 1932:
