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The Tata Industrial Bank Ltd. Vs. Abdul HuseIn Hakimji - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Summary Suits Nos. 1834, 1837, 1838, 1840 and 1943 of 1922
Reported in(1923)25BOMLR1296
AppellantThe Tata Industrial Bank Ltd.
RespondentAbdul HuseIn Hakimji
.....summer vacation-civil procedure code (act v of 1908), order xxxvii, rule 4-bombay high court rules, rules 2 and 4-practice-procedure.; the court sitting on the original side of the high court is not closed during the summer vacation within the meaning of section 4 of the indian limitation act so far as certain classes of business are concerned.; the plaintiffs filed summary suits against the defendants during the summer vacation. the judge sitting in chambers directed that the suits be heard on may 23, 1922. ex parle decrees were passed on the hearing of the suits in the absence of any application for leave to defend. the defendants applied to set aside (a) the order passed to hear the suits, and (6) the ex parte decrees, on the ground that the court was closed during the rammer..........side, viz., that there are two descriptions of holidays or vacations. one class are absolutely closed holidays, and the other class are mere vacations or ordinary holidays. the christmas and easter holidays, for instance, are absolutely closed holidays, as are also the public days notified by government. on those days there are no clerks in the building and no judge is sitting. there may possibly be one or two officials for some particular business but, speaking generally( this building, like other government buildings, is closed. that is not, however, the case with the april and october vacations. the whole office is then at work, although at reduced hours ; and though this may be the time of year for certain officials to go away on leave, the members of the office and their.....

Marten, J.

1. These five suits are all summary suits, in four of which the Tata Industrial Bank are the plaintiffs and in the last of which the Eastern Bank are the plaintiffs. They are against various defendants, but the same point arises in each of them, and therefore they have been taken together. The same counsel appear for the plaintiffs and the defendants in each case. In each case there is a notice of motion to set aside the order made by Mr. Justice Crump in Chambers directing the summary suits to be beard on May 23, 1922, and also to set, aside the ex parte decree passed by myself on the hearing of the suit in the absence of any application for leave to defend, and, thirdly, asking in the alternative that the decree may be set aside under Order XXXVII, Rule 4, there being special circumstances and that the defendants may now be given leave to defend and appear.

2. Substantially the point in each case is this: whether within the meaning of Section 4 of the Indian Limitation Act, these Courts are closed for this class of business, viz., summary suits, during the April vacation. The material dates are as follows On April 20, 1922, the plaint was declared. On April 22, Mr. Justice Crump made his order directing the returnable date for the hearing of the suits to be May 23. He then, I am informed, directed the plaint to be returned to the Prothonotary for admission, it being unnecessary to obtain any special leave under Clause 12 of the Letters Patent. Accordingly the plaint was admitted on April 24. On May 4, the service of the summons was effected, and on May 25, the matter came before me as a summary suit and an ex parte decree was passed.

3. As regards the latter date, I should explain that the number of Short Causes fixed for May 23 was originally about 300. I directed these Short Causes to be put into two lists, the one for hearing on May 23 and the other for hearing on the 25th because the intervening date, viz., the 24th, was a public holiday, In the ordinary course many of these suits were either compromised or postponed or otherwise settled before the Prothonotary, and eventually about 120 Short Causes were left. Of these I heard 70 on May 23 and the remaining 50 I took on the 25th. The summary suits came after those Short Causes. If I remember rightly they were about 12 or 14 summary suits down for hearing that day. I may say at once that in numerous summary suits applications for leave to defend were made to me during the vacation, and in several of them I have passed ex parte decrees in which no application has so far been made to set the decrees aside on the ground of want of jurisdiction,

4. I will refer for a moment to the Code to see exactly how the point is put by the defendants. Under Order XXXVII, Rule 2, it is necessary in a summary suit fur a defendant to get leave to defend, and if he does not obtain such leave, the case is beard as undefended in the way with which we are all familiar. Then, if one turns to Article 159 of the Indian Limitation Act the defendant has ten days from the service of the summons I in which to apply for leave to appear and defend a summary suit. But it is under Section 4 that the defendants' present application is mainly based. That section runs as follows :

4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

5. In the present case the service of the summons being on May 4, you would exclude that day in the computation of time, and May 14, being a Sunday, the defendant would have up to and including May 15 in which to make this application, I cannot, without looking at my records, be sure that I was sitting in Court on May 15, but I certainly was on the 16th. I was hearing insolvency work that day and ordinary Original Side work, such as Motions, Chamber Summonses, end so on, the next day. My impression is that I was sitting in Court on May 15 as well. [ His Lordship then proceeded to deal with High Court Rule?:-]

6. Up to a year or so ago, Rules 2 and 3 of our High Court Rules provided in Rule 2 that-

The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be four in every year, viz., the Easter, April, October and Christmas vacation?, and shall begin and end on such days as the Court may direct.

7. Then Rule 3 provided:

The Courts and offices are closed on the following holidays.

8. Then comes a long list of most of the ordinary public holidays, and it ends up with 'And during the Easter and Christmas Vacations (provision being made for urgent business).' Then the word 'vacations' in 'The Easter and Christmas Vacations' was struck out and it was described as 'holidays.' It will be observed that those rules did not say that the Courts were to be closed during the April vacation: but only on certain holidays.

9. Quite recently again there has been a change made in the dates of the public holidays, because it was represented to us that it was most inconvenient as regards certain public holidays for the High Court to keep one day and for the public at large to be keeping another day. That was what was happening, and so it was decided that our public holidays should coincide with the public holidays notified by Government, and those, for instance, under the Negotiable Instruments Act.

10. Accordingly Rule 2 now runs as follows:

The vacations to be observed in the several Courts and offices of the High Court on its Original Side shall be two in every year, viz., the April and October vacations, and shall begin and end on such days as the Court may direct. Besides these two vacations, the several Courts and Offices of the High Court on its Original Side shall be closed during the Easter and Christmas Holidays, beginning and ending on such days as the Court may direct.

11. Then Rule 3:

The Courts and Offices will be closed on holidays which will be published in the Bombay Government Gazette after the annual Bank Holidays are notified by Government. And daring the Easter and Christmas holidays (provision being made for urgent business.)

12. Stopping there for a moment, I think the present rules still preserve a distinction which I have always understood to be the fact on the Original Side, viz., that there are two descriptions of holidays or vacations. One class are absolutely closed holidays, and the other class are mere vacations or ordinary holidays. The Christmas and Easter holidays, for instance, are absolutely closed holidays, as are also the public days notified by Government. On those days there are no clerks in the building and no Judge is sitting. There may possibly be one or two officials for some particular business but, speaking generally( this building, like other Government buildings, is closed. That is not, however, the case with the April and October vacations. The whole office is then at work, although at reduced hours ; and though this may be the time of year for certain officials to go away on leave, the members of the office and their subordinates are substantially speaking on duty the whole of the vacation.

13. This will be seen from Rule 5 which says: 'The offices of the Court (except in vacation and holidays) are open daily' for certain hours. Then it goes on: 'In vacation the offices are open daily from 11-30 A. M. to 1-30 P. M. for urgent work only; but on Saturdays and holidays they are closed, provision being made for very urgent business.' I draw attention to that word 'closed'. It once more emphasises the distinction between the days when the Courts are closed and the days when there is only, say, partial work going on.

14. Accordingly in the new Rule 2, I do not think the use of the words 'besides these two vacations' import that the Court and offices are to be closed during the April vacation as well as, during the faster and Christmas holiday?

15. Then unfortunately there has been a recent alteration in the numbering of the various rules dealing with writs of summons. I was not aware that the old numbers had been altered in this way, and I think it must have been done while I was away on furlough. But I am again reading from the Prothonotary's copy. Under the present Rule 102, which up to a short time ago was 101, the returnable date in summary suits is four weeks from the date of the admission of the plaint; in Short Causes it is three weeks from the date of the admission of the plaint; and in Long Causes it is eight weeks from the date of the admission of the plaint; and 'in all other cases, within such time as may be considered sufficient for the transmission, service and return of the summons.' The expression 'returnable date' really means there the hearing date and not the date of appearance. Our rules at times are a little troublesome in their wording to one who is accustomed to the rules of the English Courts. But in another case I have held after making due investigation that the expression 'returnable date' in our Bombay Rules means the hearing date. Accordingly it will be seen here that the plaint being admitted on April 24, the hearing date was fixed for May 23.

16. Then under Rule 104, formerly 103, all writs have to be delivered to the Sheriff within thirty-six days from the filing of the plaint or within forty-six days during the vacations. There are corresponding provisions in Rule 369, formerly 866, as to the Sheriff not receiving the summons after those dates unless the Judge so orders. Then in Rule 267, which was formerly 266, in those cases which do not come under the statute of limitations, you reckon time exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a Sunday or other day on which the offices are closed, in 'which case the time shall be reckoned exclusively of that day also, and any succeeding day or days on which the offices continue dosed: Provided that written statements due in vacations and appeals, the time for filing which expires in vacation, may be filed on the day the Court reopens.'

17. If one eliminated that proviso, one would have thought that written statements and appeals under this rule would have to be filed during the vacation, because otherwise you would not want this proviso. But the proviso makes it clear that written statements and appeals are to be excluded from what would otherwise be the rule, and that they may be filed on the opening day of the next term.

18. Then in Rule 270, formerly 269, the Court baa got power to enlarge or abridge the time appointed by the rules or fixed by any order enlarging time, for doing any act or taking any proceeding upon terms.

19. Then in Rule 834 (old Rule 814) :

Whenever any business is required to be done in vacation, the attorney or party in person shall give reasonable notice thereof to the Prothonotary or the officer whose duty it is to attend such business.

20. I think those are the more material rules which have been brought to my attention, As regards the numbering, it just occurs to me, as I deliver judgment, that possibly the red ink numbers which the Prothonotary has inserted in his copy represent the numbers which will appear in the new rule book. If so, no harm will be done because I have given the numbers, the new and the old.

21. Now, what has actually taken place during this vacation -and this vacation is, I suppose, merely typical of the vacations experienced during the last two or three years- is that the Court in some of its branches has remained open as usual. It has remained open as usual for the disposal of all criminal work on the Appellate Side. It has remained open for urgent applications in criminal matters on the Original Side. I have, for instance, disposed of one application raising a question of jurisdiction as to whether I could stay a sentence of death under a clause in the Letters Patent without there being a point of law reserved by the trial Judge or without there being any certificate of the Advocate General he being absent from India. The Court on its Insolvency Side has done its work as usual. The Insolvency Court has been held twice a month according to the ordinary practice in term time; and all interim applications for adjudication orders and arrests, and instructions and directions to the Official Assignee have been made to me just as in term time. The Court has also proceeded with its Admiralty Jurisdiction, Normally that jurisdiction is extremely small, but during this vacation we had two Admiralty suits which I suppose in all must have occupied at least three full days of hearing in Court, They, too, have raised novel points of jurisdiction, involving one going back into the history of our Admiralty jurisdiction for the last one hundred years and upwards.

22. But taking the more ordinary work on the Original Side, we have normally three classes of suits: Summary suits, Short Causes, and Long Causes. They are generally taken in that order as representing their urgency and the likelihood of any defence. The difference between a Short Cause and a Long Cause is this : that when the Judge or the Prothonotary comas to admit a plaint, it is only admitted as a Short Cause if no substantial defence appears on the plaint. If, on the other hand, there appears to be a substantial contest, the matter is treated as a Long Cause and a written statement is called for from the beginning. And the system we have in our Courts is this: we have a list prepared of Short Causes, and then if the defendant can show the Court that he has got a defence which requires time to be heard, the matter is transferred to the Long Cause list. But otherwise the Court proceeds to fix some short date for hearing, or in some cases may hear the case there and then, whether or not any written statement has been put in or not. If of course the defendant does not appear, then the case is disposed of at the due hearing date.

23. Apart from that work, there has been a large quantity of motions for injunctions, applications for arrest, receiverships, and also miscellaneous Chamber work.

24. After dealing with the number of different matters disposed of his Lordship proceeded.- Mr. Jinnah's point is that if the Courts are 'closed' within the meaning of Section 4 of the Indian Limitation Act, then whether in fact the vacation Judges do one suit or 1000 or 5000 does not matter : for the Courts are still 'closed'. But I wish to emphasise that so far as certain classes of business are concerned, these Courts have undoubtedly not been closed. They certainly had not been closed as regards the admission of plaints, the filing of written statements, and what is much more important, the hearing of Short Causes, I entirely fail to see how it can be argued that this Court has no jurisdiction to hear in the vacation summary suits, although it has jurisdiction to hear suits which are not of such a summary nature, viz., Short Causes.

25. I may also add that though it is not our practice in the vacation to hear ordinary Long Causes, I should be very slow to hold that in certain cases this Court will never have the jurisdiction to hear a Long Cause in vacation. Take for instance the two Admiralty suits I have mentioned. In one case by consent the matter was heard in the vacation. In the other case an early date for hearing in the vacation was granted despite opposition. Those were cases where seamen were waiting in Bombay harbour for their wages. In the English Admiralty Courts where seamen are concerned the Court does its best to expedite the suit irrespective of what would be the case in an ordinary suit between landsmen.

26. Take another kind of case. Suppose you have got a light and air suit, and it is vitally important that the builder should get in his foundation or his roof before the monsoon breaks at the end of May or the beginning of June. But there is some contested point, Is it to be said that the Judge has no jurisdiction to hear that Long Cause in the vacation? Or I may take a suit for specific performance of a contract for the sale of real estate, where it is vitally important that an alleged purchaser should know whether he is the owner of the property or not. That again might be a case where the Judge would think it right in the interests of public justice that the case should be expedited and heard in the vacation.

27. Mr. Jinnah's argument for the defendants practically amounts to this : that this Court has no jurisdiction to hear one important class of suits during the vacation. In other words, it has no jurisdiction to hear summary suits, although it has jurisdiction to hear suits of lesser urgency, viz., Short Causes. In my opinion Section 4 of the Indian Limitation Act has been carefully worded. It does not talk about the vacation : it talks about 'when the Court is closed'. In my opinion it is a question of fact in each case whether the Court is closed for any particular description of work. To my mind it is impossible to say that our High Court is closed for Short Causes, and it is equally impossible to say it is closed for summary suits, if they have been directed by the Judge to be heard in the vacation.

28. In my opinion Mr. Justice Crump had ample jurisdiction to admit the plaints in these summary suits and to direct that they should be heard in the vacation. In my opinion the Court was not closed as regards that particular description of suits during the vacation any more than it was for Short Causes. And nobody can suggest, as far as the making of the application to the Court is concerned, that there was the slightest practical difficulty in applying to the Court because, as I have already pointed out, on all material dates in the present case, I was sitting in Court almost every day including Saturday.

29. Now what actually happened was this. When the suits came on for hearing before me the defendants did not appear by counsel. Their solicitor stated something to the effect that I had no jurisdiction to hear the suits during the vacation, I said that as no leave to defend had been obtained, he had no locus standi. Then in one or it may possibly be in some other of the suite he asked for leave to defend. But there was no affidavit and there was no application before me in writing. Nothing except what the solicitor said. I, accordingly, declined to entertain the application, and made the decrees.

30. At a later date the defendants appeared by counsel and got my leave to serve the present notice of motion in each case and today I have had the advantage of a very useful argument from Mr. Jinnah in the course of which I believe he has drawn my attention to all the points that can be said in favour of his client.

31. The conclusion which I have arrived at is this : that these Courts were not closed during this April vacation for the disposal of summary suits, and therefore the defendants were out of time with their application for leave to defend, and that, so far as that goes, the exparte order must stand.

32. Now I come to a further point. Mr. Jinnah for the defendants has argued that assuming the ex parte decree was properly made, still under Order XXXVII, Rule 4, I have power to set aside the decree. Rule 4 runs :

After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court as to do, and on such terms as the Court thinks fit.

33. We are now at June 12. But even now I have no affidavit before me nor any indication of what the defence, if any, of the defendants to these suits is. As far as one of them is concerned, viz., the last suit by the Eastern Bank, my attention has been drawn to a letter in which the defendants have admitted their liability and have given a promise to pay. So, so far as that suit is concerned, one fails to see how there could be any defence. How can I say then th6re are here any special circumstances in the other suits? It is said that these special circumstances arise from the fact of the vacation and from the state of the authorities. Mr Jinnah has cited to me altogether three authorities, one in Ranchordas v. Pestonji : (1907)9BOMLR1329 , another in Rani Venkata Ramania v. Kherode Mull (1898) 10 C.L.J. 118 and the remaining one in Nachiyappa v. Ayyasami I.L.R. (1882) Mad. 189 Not one of them deals with Short Causes. They deal with the point about admission of plaints or appeals and there is also a reference in Mr. Justice Russell's decision in Ranchordas v. Pestonji to a case decided by Sir Charlse Sargent and Mr. Justice Farran as regards the time for filing an appeal. But, as I have already pointed out, in our rules it is perfectly clear that the time for petitions in appeal does not expire in the vacation but extends to the opening days of the term time, So, there being an express rule on the subject, there seems nothing in that point. But I do draw an important distinction between those cases and the cases where the Court has directed that certain business shall be Jone. As regards the case of Nachiappa v. Ayyaaami, which was a decision of the Full Bench as regards an appeal in a District Court, it appears that four of the learned Judges there took very much the same view as I have endeavoured to express in the present case, and that the remaining Judge took a contrary view. Taking at its best, one can see on the authorities that the defendants were running a big risk in assuming that the decision of the Full Bench of the Madras High Court was an erroneous decision.

34. My own view is this. I think the defendants here in all probability-I can only judge by the facts before me-were endeavouring to gain time. The way they appeared before me in Chambers by a solicitor only and even their present conduct in putting in no affidavit would seem to bear that point out. It is not Mr. Jinnah's fault, but the fact remains that if I were to set aside the decrees and to give leave to the defendants to appear and defend the suits, I have not the remotest idea whether they have got any defence or not. One test to apply in such cases is: are you prepared to bring the money into Court? I put that question to counsel for the defendants and added that it must be with interest and include a reasonable sum for costs. The answer given to me was 'No' and I thought then that the matter was finished. But at the end of the case it was stated that the Tata Bank in other cases had the security of immoveable property, and therefore it was unreasonable to ask that money should be brought into Court. Mr. Campbell, however, says that these title deeds are securities not for the notes in the present case but for other promissory notes which are the subject of pending litigation.

35. It seems to me, therefore, that the more fact that the bank are secured as regards certain other debts is no reason why the defendants should not bring into Court something in respect of the present debt. It does not follow that the Bank can hold these other title deeds as security for their claims in the present suit?. At any rate I have no documents at all before me, and all I have got at the present moment are the conflicting statements by counsel on either side. Assuming there is any value, which 1 do not know, in the equity of redemption of these other iinmoveable properties, there is nothing to prevent the defendants from raising a second mortgage on the value of the equity of redemption. They have had ample time here but in fact have done nothing.

36. In my opinion there are no special circumstances before me today within Order XXXVII, Rule 4, and even if there were I should, as a condition of granting leave to defend, require the defendants to bring into Court within seven days the amount of the decree claimed with interest up to date and a sum of Rs. 203 as security for costs of the summary suits and of the notices of motion. These terms admittedly cannot be complied with, and under these circumstances I should decline to grant any leave under Order XXXVII, Rule 4.

37. In the result, all these motions will be dismissed and dismissed with costs.

38. I should have added that a question arose to my mind as to whether these notices of motion should have been heard by my brother Crump or by myself, but in the events which have happened, Mr. Justice Crump would have been unable to attend Court today and he has asked me to hear these motions for him if and in so far as any such request is necessary.

39. Note.-An appeal No. 51 of 1922 was presented by the defendant in the above Summary suit No. 1843 of 1922 against the above decision. It was dismissed with costs by Shah Acting C.J. and Kemp J. on October 16, 1922, the appellant not appearing.

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