Sahidullah Munshi, J. - (1.) The Court : This is an application filed by United Sprits Limited (formerly known as Shaw Wallace & Company Ltd.), a company within the meaning of the provision of the Companies Act, 2013. The application has been contested by filing affidavit-in-opposition affirmed by Balkrishnan Mankani, a Managing Director of the plaintiff Company being acquainted with the facts and circumstances of the case. The application by the petitioner has been made to invoke Court's jurisdiction under Order IX Rule 13 of the Code of Civil Procedure hereafter referred to as the 'said Code'. The application seeks for recalling of an ex parte order and decree dated 14th November, 2014 passed by this Court in the suit. The petitioner on 20th September, 2016 received a letter dated 6th September, 2016 from the learned advocate for the plaintiff, inter alia, including there with a copy of E.C. No. 431 of 2016 and an order dated 1st September, 2016 passed by this Court. The said letter disclosed that the said application was filed by the plaintiff, inter alia, seeking execution of a decree passed in the suit. The defendant against whom the decree was passed, appeared to be Shaw Wallace Company Limited, a company, which had, according to the present petitioner, stood amalgamated with the petitioner by an order dated 16th January, 2016 passed by this Court. On being so informed the petitioner made a contact with his learned advocate and made over papers received by him from the plaintiff. After ascertaining the fact that the said suit against Shaw Wallace Company Limited was decreed by the Order dated 14th November, 2014 the petitioner filed the instant application wherein it was, inter alia, demonstrated that the suit was instituted in 1992; writ of summons was never served upon the defendant in the regular course; on 5th January, 2010 the suit was dismissed for default; an application being G.A. no. 3662 of 2011 had been filed by the plaintiff after such order of dismissal; restoration application itself was dismissed for default on 4th January, 2012; on 5th January, 2012 the order dated 4th January, 2012 was recalled, the said application was again dismissed for default on 10th February, 2012; another application being G.A. no. 2419 of 2013 was filed by the plaintiff seeking restoration of the suit; by an order dated 6th September, 2013 department was directed to file a report as to the status of the said suit; by an order dated 20th September, 2013 the Hon'ble Court was pleased to dismiss the application upon contest, inter alia, on the ground that no explanation had been offered for not taking any steps in the suit since its inception with respect to lodging of the writ of summons; the plaintiff preferred an appeal being APOT 27 of 2014 from the order dated 20th September, 2013; when it was submitted by the plaintiff before the Appellate Court that defendant could not be served owing to the fact that it could not be able to collect present whereabouts of the defendants who left the premises without any address, the Court directed that notice of appeal be served through substituted services by publication; the appeal was disposed of by setting aside the order dated 20th September, 2013 and directed for service of writ of summons by publication. Thereafter, the suit again appeared before the Suit Court and finally it was decreed ex parte on 14th November, 2014.
(2.) It is the specific case of the petitioner that it has never received notice of suit. In the affidavit-in-opposition filed by the plaintiff a stand has been taken that in view of the publication made by it in pursuance of the order passed by the Division Bench through substituted service of notice of appeal it should be deemed that the defendants had knowledge of the suit and summons had been served upon them.
(3.) On behalf of the plaintiff an affidavit-in-opposition has been filed opposing the prayer for recalling made by the defendant petitioner. In the said affidavit it has been categorically stated that plaintiff having its Office at Bangalore had engaged an advocate in Calcutta for carrying out all procedural formalities in the suit but the advocate's office after filing of the writ of summons, did not pursue the matter. According to the plaintiff only on 2nd August, 2011 that one of the Directors of the plaintiff/company while surfing the internet, came to learn about an order dated 5th January, 2010 whereby the suit was dismissed. It is on record that after the filing of the suit an application was filed praying for restoration and the same was running in the list but suddenly the matter ceased to appear. The clerk of the plaintiff's advocate tried to ascertain the reason of the matter not appearing in the list but was unable either to know as to what happened to the general application or to be able to trace the papers of the general application. In the meantime there was renovation going on in the departments of the High Court and once again the file was untraceable. The ledger also did not reflect passing of any orders in the said general application nor was there any order in the High Court's server. In such circumstances, the advocate for the plaintiff was compelled to file another application being G.A. No. 2419 of 2013. The plaintiff, however, mentioned in this G.A. about the earlier application filed by it. The second G.A. was taken up for hearing by Hon'ble Single Judge of this Court and by an order dated 6th September, 2013 directed the department to produce the original writ of summons and all papers connected with the suit on 13th September, 2013. Second G.A. was taken up by the Court and by order dated 20th September, 2013 dismissed the suit of the plaintiff. An appeal was preferred against the said order of dismissal. But since service could not be shown upon the defendant the Hon'ble Division Bench recorded an order on 24th January, 2014 and directed that gist of the notice of the appeal be published in the "Times of India". The said publication was, accordingly, made in terms of the aforesaid order and an affidavit of compliance was filed in Court. The notice of appeal has been annexed with the affidavit-in-opposition at page 34.;