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Atul Chandra Sarkar Vs. East Bengal Commercial Bank Ltd. and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 23 of 1957
Reported inAIR1960Cal309
ActsCivil Prodecure Code , 1908 - Section 11 - Order 9, Rule 13 - Order 47, Rule 1
AppellantAtul Chandra Sarkar
RespondentEast Bengal Commercial Bank Ltd. and anr.
DispositionAppeal dismissed
Cases ReferredGanganarayan Gupta v. Tiluckram Chaudhury
- .....settled and the suit was dismissed on the preliminary ground mentioned above. by his judgment the learned judge held that 'it was well established that a suit to set aside en ex parte decree was only maintainable if there was a fraudulent suppression of the summons and that mere non-service of the summons was not a ground on which such a suit could be maintained'. he relied on the judgment of roy, j. in tarunan, ganath banerjee v. premnarayanlal raizada : air1933cal274 . the learned judge observed that as the plaintiff had given no particulars of the fraud, namely, fraudulent suppression of the summons, the suit must fail on the averment made in the plaint. in effect, the learned judge came to the conclusion that a mere allegation that there had been fraudulent suppression of the.....

G.K. Mitter, J.

1. This is an appeal from a decree dismissing the plaintiff's suit on the preliminary ground that the suit is not maintainable.

2. The first defendant herein, East Bengal Commercial Bank Ltd., obtained a decree in this Court against the plaintiff and the second defendant, Oriental Trading Syndicate, a partnership firm, on an overdraft account on 20-7-1948. The suit was filed on 21-2-1948 and was decreed ex parte. The plaintiff Atul Chandra Sarkar did not make an application for setting aside the said decree or prefer an appeal theretrom. He tiled this suit on 21-1-1949, claiming a declaration that the said decree of 20-7-1948 was void and of no effect and asked for setting aside the same. His allegations in the plaint are:

(a) On 16-3-1946 an agreement was entered into by and between the Bank on the one hand and the plaintiff and the second defendant (hereinafter referred to as the firm) on the other whereby the Bank was to lend to the firm the sum of Rs. 5,000/-against the securities of bills drawn or to be drawn by the firm, such loan to be guaranteed by the plaintiff.

(b)In pursuance of this agreement various sums of money were advanced by the Bank to the firm and bills deposited by the firm were collected by the Bank and appropriated towards its dues.

(c) On 31-5-1946 the plaintiff revoked the said guarantee by notice in writing.

(d) On the last mentioned date a sum not exceeding Rs. 3,581/6/9p was due by the firm to the bank and a number of bills drawn by the firm and exceeding the above mentioned sum remained with the bank for collection and appropriation.

(e) Thereafter the firm deposited various bills with the bank which were duly collected by the bank thus wiping out the liability of the firm. In November, 1948 the bank purported to execute the decree made on 20-7-1948 and caused to be attached various properties belonging to the plaintiff.

(f) The writ of summons was never served upon the plaintiff who had no opportunity to defend the suit filed by the bank-

'and the said decree was obtained ex parte fraudulently by suppression of the summons and by perpetrating a fraud upon the Court by suppression of material facts, in particular by suppression of the fact as to the revocation of the guarantee by the plaintiff as aforesaid'.

3. By the written statement filed herein the bank denied the allegations made in the plaint and contended that the writ of summons in the former suit was duly served by affixation after three unsuccessful attempts and the plaintiff had knowledge of the same at all material times. The bank also described the story of revocation of the guarantee as untrue.

4. The suit came on for hearing before S. R. Das Gupta, J. on 13-6-1956. It appears that no issues were settled and the suit was dismissed on the preliminary ground mentioned above. By his judgment the learned Judge held that

'it was well established that a suit to set aside en ex parte decree was only maintainable if there was a fraudulent suppression of the summons and that mere non-service of the summons was not a ground on which such a suit could be maintained'. He relied on the judgment of Roy, J. in Tarunan, ganath Banerjee v. Premnarayanlal Raizada : AIR1933Cal274 . The learned Judge observed that as the plaintiff had given no particulars of the fraud, namely, fraudulent suppression of the summons, the suit must fail on the averment made in the plaint. In effect, the learned Judge came to the conclusion that a mere allegation that there had been fraudulent suppression of the summons without any other particulars would not be enough to maintain a suit.

5. The grounds of appeal taken are, inter alia:

(1) That sufficient particulars of fraud had been given in the plaint and

(2) that the learned Judge should have given the plaintiff an opportunity to substantiate the averment made therein by evidence.

It will be noticed that there is no allegation that the plaintiff had offered to give particulars or that he had asked for an opportunity to amend the plaint by giving particulars. The teamed advocate for the appellant was asked as to what particulars his client could give; to this the reply was that tile client would have to look into the evidence adduced in the former suit and then tell the court in what manner the fraud had been perpetrated.

6. It cannot be disputed that a decree will not be reopened on the ground that it was obtained by means of perjured evidence. If a decree is allowed to be attacked in this manner there would never be any finality to any litigation. It was so held by Petheram, C. J. and Ghosh J. in the case of Mahomed Golab v. Mahomed Sulliman ILR 21 Cal 612.

7. As early as 1897 this Court held in Pran Nath Roy v. Mohesh Chandra Moitra, ILR 24 Cal 546 (at p. 549) that

'the plaintiff could not bring a suit to set aside the decree on the bare ground that the summons was not served, or that he was prevented for some good reason from defending the suit and that would be so whether he had availed himself of the remedy prescribed by Section 108'.

That section corresponds to Order 9 Rule 13 of the present Code. In that case the Subordinate Judge summarily dismissed the suit. The High Court held that the plaintiffs case

'was that the suit in which the decree was obtained was a fraud in its inception and throughout and he ought to recover the property of which he had been deprived by means of fraudulent decree.' The Judges further observed

'it is not correct to say that the only fraud alleged is in the non-service of the summons. This was part of the scheme and the means or one of the means by which the fraud was committed.' The fraud there alleged consisted in making false returns of service of summons and the processes in execution of the decree and in not giving a proper description and valuation of the property sold. The High Court reversed the judgment of the Subordinate Judge. In appeal the Judicial Committee observed that the High Court had taken a correct view of the matter. Sec Radha Raman Shaha v. Pran Nath Roy, ILR 28 Cal 475.

8. A similar case Khagendra Nath Mahata v. Pran Nath Roy went up to the Judicial Committee and is reported in ILR 29 Cal 395. In this case the plaintiff averred in his plaint that the defendant had procured a person to institute a groundless suit for monies which were not due and in order to get him out of the way by a collusive suit got him declared a lunatic and by threats forced him to leave his home and stay in secrecy, that they concealed the Money Suit, got a false return of service and carried through the decree and sale of the properties behind the back of the plaintiff. The Board observed that

'these allegations are plainly an attack not on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to end'.

Referring to Section 108 and Section 311, the Board observed that

'those sections limited the attention of the tribunal to specific matters and instead of subjecting to radical enquiry the question now involved they assumed the existence of a real suit'.

9. In Narsingh Das v. Mt. Bibi Rafikhan, ILR 37 Cal 197 where the plaintiff merely alleged non-service of summons in the prior suit, the court held that this could not be done and relied on the observations of the Judicial Committee in the cases reported in ILR 28 Cal 475 and ILR 29 Cal 395 mentioned above in support of their conclusion.

10. The learned Advocate for the appellant relied on the following observation of a Division Bench in Kunjabehari Chakravarty v. Krishna Dhone Majumdar : AIR1940Cal489 :

'To us it seems that to sustain an action for setting aside a decree on the ground of fraud the fraud alleged must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and obtaining that decree by that contrivance *** But when the fact of non-service of summons is proved by the plaintiff in the later action, and the claim on which a decree was passed is proved to be a false one, the court may and should ordinarily infer deliberate and hence fraudulent suppression, for the last mentioned circumstance supplies the motive for the suppression and indicates that the suppression is itself fraudulent'.

11. The above case and specially the latter part of the observations set forth came up for consideration in the recent case of Nemchand Tantia v. Kishinchand Chellaram (India) Ltd., : AIR1959Cal776 where the above dictum was approved of with the qualification that the words 'should ordinarily' were better omitted and the discretion of the court left unfettered.

12. The above clearly shows that this court has consistently held that mere non-service of summons is not enough to found a cause of action for setting aside a decree. Where mere non-service is the complaint, the remedies available are (i) an application under Order IX Rule 13, (ii) an appeal from the ex parte decree and (iii) an application for review under Order 47 Rule 1 of the Code of Civil Procedure.

13. In this case the learned trial Judge held that no particulars having been given, the allegation of fraud could not be taken notice of. It has always been held that general allegations of fraud, however strong the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court ought to take notice, Wallingtord v. Mutual Society, (1880) 5 AC 685 at p. 697. In my opinion the expression 'suppression of summons' by itself does not amount to a sufficient averment of fraud. 'To suppress' means 'to keep secret', 'not to reveal', 'to withhold'. Suppression of summons, therefore, means keeping the summons secret or not revealing it or withholding it. By itself it means little more than not serving it. It in this case the learned Judge had allowed the issue to be raised in the general form 'was the writ of summons suppressed?' the defendant would have no idea as to the particular case of fraud the plaintiff was going to make. Something more would be necessary; there would have to be an averment that there was collusion between the process server and the identifier or that there was a deliberate misleading of the process server or other similar allegations.

14. In my opinion the learned Judge was right in holding that there was no sufficient averment of fraud and if the case was only one of non-service of summons, as the learned Judge held it to be, the suit was not maintainable. It would certainly nave been better if he had indicated that the plaint did not disclose a cause of action and unless the plaint was amended by supplying proper particulars he would have to reject the same under Order 7 Rule 11 of the Code of Civil Procedure. The learned Judge does not seem to have adopted this course. In fairness to him it must be said that there appears no request on the part of the plaintiff's lawyers for an opportunity to cure the lacuna in the plaint. But even if the learned Judge had returned the plaint, another suit could not have been filed because 7 years had elapsed in between the institution of the suit in 1949 and the trial of it in 1956.

15. The appeal should, therefore, be dismissed--a course which was adopted by the Judicial Committee in the case of Ganganarayan Gupta v. Tiluckram Chaudhury, ILR 15 Cal 533. The respondent will have the costs of the appeal.

16. The liquidator will retain his costs as between attorney and client in the first instance out of the assets in his hands.

Das Gupta, C.J.

17. I agree.

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