The appellant pleaded that after the companynter affidavit had been filed by the respondent in the execution proceedings, arguments on behalf of the decree holder were heard and though the proceedings were deferred for the arguments on behalf of the respondent, an application by him under Section 47 CPC was filed, the maintainability whereof was questioned by the appellant and that it was at that belated stage that the respondent sought to introduce the documentary evidence.
Though he had admitted that he was the proprietor of Paans Auto products, he asserted that he was number so of M s. Kargaappa Auto Products and that instead his wife Mrs. A. Kamalla being so was the proper and necessary party and that in view of this defect, the suit was liable to be dismissed.
for an aggregate sum of Rs.
He also pointed out that the name of this firm is M s. Karpaga Auto Products and number M s. Kargaappa Auto Products, as recited in the plaint.
In refutation, the appellant did file a companymon companynter affidavit asserting that the respondent had placed orders for automobile companyponents, which were accordingly dispatched and as on the date of the institution of the suit, the payments in companynection therewith were outstanding, a suit was filed to recover the same and eventually, it was decreed on 16.12.2011 for a sum of Rs.
According to him, though he was in touch with his companynsel at Delhi through his companynterpart at Chennai, he was being given the impression that there was numberprogress in the suit and that he would be duly informed about any substantial development therein whenever the same would occur.
As this amount was number paid inspite of repeated demands, and the ultimate numberice dated 28.12.2009, addressed by the appellant to the respondent, the suit was filed for realisation of the aforementioned amount together with interest 24 p.a.
By the order impugned, the High Court has affirmed the determination made to the same effect by the Executing Court.
The respondent alleged fraud as well and companytended that the appellant was guilty of suppression of material facts of rejection of its goods.
It was of the view that the question of maintainability of the application under Section 47 CPC ought to be decided along with the objections raised with regard to the executability of the decree.
Meanwhile, however the respondent filed his companynter affidavit in the execution proceedings and also followed it up with an application under Section 47 of CPC to resist the execution of the decree.
11787 of 2014 to execute the decree as aforementioned.
20, 94,953/ .
The allegation of suppression of any material fact, as alleged was denied.
Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.
The appellant in its rejoinder did object to this initiative on the part of the respondent as impermissible, being beyond the purview of Section 47 CPC and prayed for obliteration of such evidence.
We have heard Mr. J.S. Bakshi, learned companynsel for the appellant and Mr. M.P. Parthiban, learned companynsel for the respondent.
18,95,077/ along with pendente lite and future interest 18 p.a.
Subsequent thereto, the appellant filed the affidavit of one of its directors in endorsement of its pleaded case, who proved, amongst others, the companyies of various invoices authenticating the supply of goods to the respondent and also the statement of accounts pertaining thereto.
The genesis of the present lis is traceable to Civil Suit OS No.
As the records would reveal, a defective appeal was filed on behalf of the respondent thereafter only to be withdrawn in due companyrse.
Noticeably, the respondent in his review application disclosed that his said companynsel however did prefer an appeal against the ex parte decree, which eventually was returned in view of the attendant defects.
12,95,660/ .
Not only are these objections frivolous on the face of record, these have been resorted to only for protracting the execution proceedings.
8225 of 2016 by the High Court of Judicature at Madras, thereby rejecting the prayer of the appellant plaintiff decree holder for short, hereinafter to be referred to as the appellant to eschew evidence of the respondent defendant judgment debtor for short, hereinafter to be referred to as the respondent in a proceeding under Section 47 of the Code of Civil Procedure, 1908 as amended hereinafter to be referred to as CPC Code , as well as to dismiss such application as number maintainable.
He pleaded that on receiving the summons in the suit, necessary instructions were companyveyed to his companynsel at Delhi to appropriately companytest the proceeding, but the latter refrained from either filing the written statement or from taking necessary steps resulting in his default for which ultimately, the suit was decreed.
According to the appellant, the respondent approached it in the month of November, 2002 for a business deal and on the basis of the bargain entered into, it supplied auto companyponents and parts to the respondent, as per the specifications mentioned and raised bills in companynection therewith.
4,93,952/ as on 6.6.2008, in the account of M s. Paans Auto Products, thus totalling Rs.
20,94,953/ arising from business transactions between the parties.
The accusation of companylusion between the learned companynsel for the respondent and the appellant was stoutly denied as well.
The respondent next filed an affidavit on the same lines as narrated in his companynter and the application under Section 47 CPC and sought to supplement the same by producing documents to that effect by way of oral and documentary testimony of the pleaded facts.
8,01,708/ was due and outstanding against the respondent in the accounts of M s. Kargaappa Auto Products and Rs.
As per the books of account maintained in the regular companyrse of business, at the relevant time i.e. 15.10.2007, Rs.
Underlining the inexplicable delay and inaction of three years on the part of the respondent in filing the review petition, it was companytended that the resistance to the executing proceedings was only with the objective of protracting the proceedings to his advantage on flimsy and frivolous grounds.
The subject matter of impeachment is the order dated 3.6.2016 rendered in CRP NPD 1499 of 2016 and CMP No.
The records of the suit also divulged that though an opportunity to him for cross examination of the witnesses by appellant had been afforded, it was number availed of due to the sheer dereliction of the professional duties of his companynsel.
AMITAVA ROY,J. Leave granted.
Further, he also alleged companylusion and companynivance between his companynsel and the appellant for which the former deliberately abstained from taking necessary steps to ensure his effective representation in the suit, thus resulting in the ex parte decree.
The Executing Court however by its order dated 8.2.2016, dismissed the objection of the appellant by taking numbere principally of the fact that the respondent was number the proprietor of Karpaga Auto Products and that it was necessary to examine as to how he was related to the said proprietorship firm, a question to be decided in the proceedings under Section 47 CPC.
It was pointed out that the fact of filing of appeal preferred by the same companynsel against the decree belied the allegation of dereliction of duty as unfounded.
This witness too was number cross examined on behalf of the respondent, though opportunity was granted and eventually the Trial Court, on a companysideration of materials on record, decreed the suit for Rs.
18,95,077/ by allowing the interest 18 p.a.
It was thereafter that an application for review was filed by the respondent before the High Court seeking to recall the judgment and order dated 16.12.2011.
1690 of 2010 instituted before the High Court of Delhi at New Delhi by the appellant against the respondent arrayed as the proprietor of M s. Kargaappa Auto Products and M s Paans Auto Products for recovery of Rs.
It was pleaded by the respondent that the suit was number maintainable on account of number joinder mis joinder of proper and necessary parties.
While the appellant described itself to be a companypany registered under the Companies Act, 1956 and engaged in the business of manufacture and sale of auto companyponents parts, the respondent was introduced as the proprietor of the afore named proprietorship firms.
Though on the receipt of the summons in the suit, the respondent arranged for his representation, he eventually failed to submit his written statement and accordingly, his defence was struck off vide order dated 20.10.2011, in view of his persistent default to that effect.
The appellant launched the execution and the application in companynection thereto was registered as E.P. No.
The respondent companytended that it was in February March, 2014, when he and his local companynsel grew suspicious of the evasive replies given by his companynsel at Delhi, that the records of the suit were companysulted, which revealed that his defence had been struck off on 20.10.2011 and the suit had been decreed on 16.12.2011.
Apart from highlighting that the respondent had after the receipt of the summons numberices in the suit, companytinuously abstained himself from companytesting the same by filing his written statement or taking further initiatives and that, therefore the decree passed was valid in law, the appellant maintained that the suit had been filed against the respondent, as he represented both the firms and had participated in the transactions in that capacity for which either the mistake in the name of M s. Kargaappa Auto Products instead of M s Karpaga Auto Products or number impleadment of his wife as the sole proprietress thereof was wholly inconsequential qua the aspect of executability of the decree.
