Case Note & Summary
The appellant, Shashikant s/o Eknath Choudhari, filed a first appeal under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 28th January 2015 passed by the trial Court in a civil suit for recovery of Rs.24,46,740.96 paise with interest at 18% per annum. The suit was originally filed by the Maharashtra State Electricity Board (later reconstituted as Maharashtra State Electricity Distribution Company Limited) against respondent No.2 company and respondent No.3 (a director). During the suit, the plaintiff impleaded additional parties, including the appellant as defendant No.4, based on an application by respondent No.3 stating that directors were necessary parties. The appellant contended that he was never served with summons of the suit and only became aware of the proceedings during execution. The trial Court decreed the suit ex-parte against all defendants. The High Court, after hearing the appellant and the respondents, found that the appellant was not served with summons and had no opportunity to defend. The Court set aside the decree against the appellant and remanded the matter to the trial Court for fresh decision after giving the appellant an opportunity to file a written statement and lead evidence. The Court directed the trial Court to decide the suit afresh within one year from the date of receipt of the order. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Service of Summons - Ex-parte Decree - Setting Aside - The appellant, a judgment-debtor, challenged the decree passed by the trial Court for recovery of electricity dues on the ground that he was not served with summons and had no knowledge of the suit. The Court held that the appellant was not served with summons and had no opportunity to defend, thus the decree was set aside and the matter remanded for fresh decision after giving opportunity to the appellant to file written statement and lead evidence. (Paras 1-5) B) Electricity Law - Recovery of Dues - Liability of Directors - The suit was filed by the electricity company against the company and its directors for recovery of arrears of charges for supply of energy. The appellant was impleaded as a director. The Court did not decide on the merits of the liability but remanded the matter for fresh adjudication. (Paras 2-5)
Issue of Consideration
Whether the judgment and decree passed by the trial Court against the appellant is sustainable when the appellant was not served with summons of the civil suit and had no knowledge of the proceedings.
Final Decision
The appeal is allowed. The impugned judgment and decree is set aside against the appellant. The matter is remanded to the trial Court for fresh decision after giving opportunity to the appellant to file written statement and lead evidence. The trial Court is directed to decide the suit afresh within one year from the date of receipt of the order. No order as to costs.
Law Points
- Service of summons
- Principles of natural justice
- Setting aside ex-parte decree
- Opportunity of hearing
