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The ex-parte judgment was set aside by the SC - held defendant would not get any benefit by non-contesting; SC.

Supreme Court of India

Justice R Banumathi & Justice A S Bopanna

The SC {AVIATION TRAVELS PVT. LTD. v. BHAVESHA SURESH GORADIA AND OTHERS} while setting aside the ex-parte judgment holds that the suit claim was for damages. It was held that the damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. Further held that there is no reason to believe that the appellant would have benefitted by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit. Considering the nature of the claim and other facts and circumstances and in the interest of justice, It was held that an opportunity has to be given to the appellant to contest the suit subject to terms.

It was held by the SC that though various contentions have been raised as to whether appellant was served or not and entered appearance in the suit, the SC was not inclined to go into the merits of the contentions. It was held that an opportunity has to be given to the appellant for contesting the suit. It is because the suit was filed for recovery of damages of Rs.1 crore and respondent No.1 claimed interest @ 24% per annum. 

The Single Judge of HC dismissed the Notice of Motion No.580 of 2018. The learned Single Judge noted that the ex-parte decree dated 07.10.2003 shows that an advocate was engaged on behalf of the appellant and respondent No.2 and the said advocate has filed vakalatnama and there is no question of having to thereafter serve a party personally. The High Court held that along with the affidavit, a Power of Attorney dated 29.04.1993 was said to have been executed by the appellant in favour of one K. Shrinivas Rao and there is also a rubber stamp and circular common seal of the appellant in the Power of Attorney and the Power of Attorney is said to have been notarized in Mumbai and the seal of the Notary is also visible. Pointing out that the defendant No.1 through its Power of Attorney had engaged a lawyer and there was a validly executed vakalatnama by a constituted attorney K. Shrinivas Rao and also that writ of summons was in fact served on the appellant and respondent No.2 (original defendant No.1A) by bailiff attached to the office of Sherrif of Mumbai, the learned Single Judge dismissed the Notice of Motion No.580 of 2018.

In the present case, the appeals arose out before the SC of the impugned judgment dated 09.07.2018 passed by the High Court of Judicature at Bombay in Appeal (Lodging) No.224 of 2018 in Notice of Motion No.580 of 2018 in Suit No.2865 of 1994 in and by which, the High Court dismissed the Notice of Motion filed by the appellant and declined to set aside ex-parte judgment and decree dated 07.10.2003 passed against the appellant in Suit No.2865 of 1994 and the impugned order dated 26.10.2018 passed in Review Petition (Lodg.) No.20 of 2018 whereby the review petition filed by the appellant was dismissed.  The appeals were allowed by the SC - by setting aside the ex-parte judgment.

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