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Madras High CourtA/2972/2018dismissed

M/S.Adani Enterprises Ltd v. M/S.Hothur Steels

2018-04-10Honourable Mr Justice N. Sathish Kumar5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 10TH DAY OF APRIL 2018 THE HON'BLE MR.JUSTICE N.SATHISHKUMAR A.No.2972 of 2018 in A.No.7476 of 2017 in C.S.No.291 of 2015 M/s. Adani Enterprises Lrd., Registered Office: Adani House, Shrimali Society, Nr.Mithakhali Circle, Navrangpura, Ahmedabad - 380009 Branch Office : D 34, 8th Floor, Halls Road, Egmore, Chennai - 600 008 Rep.by its Associate General Manager Mr.C.Rajasekar : Applicant/Plaintiff (in A.No.2972 of 2018) Vs

1. M/s. Hothur Steels Represented by this Partners Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka 583104.

Also having a branch office at No.872, 17th E Main, 6th Block, Koramangala, Bangalore 560095.

2. Mr.Mohammed Tauseef Partner M/s. Hothur Steels Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka - 583 104.

3. Mr.Mohammad Asif Partner M/s. Hothur Steels Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka - 583 104.

: Respondents/Defendants (in A.No.2972 of 2018)

A.No.7476 of 2017:

1. M/s. Hothur Steels Represented by this Partners Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka 583104.

Also having a branch office at No.872, 17th E Main, 6th Block, Koramangala, Bangalore 560095.

2. Mr.Mohammed Tauseef Partner M/s. Hothur Steels Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka - 583 104.

3. Mr.Mohammad Asif Partner M/s. Hothur Steels Hothur Arcade, RTO Road, Cantonment, Bellary, Karnataka - 583 104.

: Applicants/Defendants -VersusM/s. Adani Enterprises Lrd., Registered Office: Adani House, Shrimali Society, Nr.Mithakhali Circle, Navrangpura, Ahmedabad - 380009 Branch Office : D 34, 8th Floor, Halls Road, Egmore, Chennai - 600 008 Rep.by its Associate General Manager Mr.C.Rajasekar : Respondent/Plaintiff Application praying that this Hon'ble Court be pleased to allow the appeal and set aside the order dated 05.02.2018 passed by the Learned Master in A.No.7476 of 2017 in C.S.No.291 of 2015.

This Application coming on this day before this court for hearing the court made the following order:-

This appeal has been filed against the Order of the Master allowing the application to set aside the exparte decree.

2. The learned Master by his Order dated 05.02.2018, allowed the application filed to set aside the exparte decree. The main contention of the appellant before this Court is that the exparte decree has been passed after the summons were duly served on the other side. Whereas the learned Master took a contrary view. Further, the person who filed the affidavit claims to be the partner of the firm. But the firm itself dissolved long back. Hence, this application is not maintainable and the learned Master has not taken into consideration these facts.

3. Whereas, the learned counsel appearing for the respondents would submit that the Court summons have not at all been served and only private notice was made to appear as if service is completed and exparte decree has been obtained. Thereafter, on coming to know about the exparte decree, immediately, an application to set aside the exparte decree with a delay condonation application have been filed and the same have been allowed. Hence, this application is liable to be dismissed.

4. Heard both sides. Perused the materials available on record.

5. Admittedly, the exparte decree, which has been passed against the defendants, has been set aside by the learned Master. To contenance the contention of the appellant that the suit summons were served through Court, no materials are available on record. Further, the private notice whether served on the defendants or not, has also not been established. In view of the same, it is for the appellant to establish that the summons were duly served on the defendants. In the absence of any proof in that regard, it has to be inferred that summons have not been properly served on the defendant.

6.Similarly, one of the partner has filed an application to set aside the exparte decree. In view of this Court, the same cannot be a ground to non suit the appellant. The suit itself has been filed for recovery of money based on the supply of coal. Only on proper pleadings of both sides, lis can be adjudicated finally. Hence, this Court is of the view that an opportunity for defending the suit has to be given to the defendants and I find no infirmity in the Order passed by the Master.

7.

7. Accordingly, this appeal is dismissed. No cost. Sd/.N.S.K.J 10.04.2018 //Certified to be a true copy// Dated this the day of 2018 jj 13/06/18 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.