AVIATION TRAVELS PVT. LTD. v. BHAVESHA SURESH GORADIA  INSC 224 (2 March 2020)
ISSUE:- These appeals arise out of the impugned judgment dated 09.07.2018 passed by the High Court of Judicature at Bombay in Appeal (Lodging) No.224 of 2018 in Notice of Motion No.580 of 2018 in Suit No.2865 of 1994 in and by which, the High Court dismissed the Notice of Motion filed by the appellant and declined to set aside ex-parte judgment and decree dated 07.10.2003 passed against the appellant in Suit No.2865 of 1994 and the impugned order dated 26.10.2018 passed in Review Petition (Lodg.) No.20 of 2018 whereby the review petition filed by the appellant was dismissed.
FACTS: – Respondent No.1 filed a suit being Suit No.2865 of 1994.before the High Court of Bombay against the appellant and respondents No.3 to 24 for permanent injunction and compensation of Rs.1 crore for trespass, nuisance and damages allegedly made by appellant-Defendant No.1. It is stated that respondents No.3 to 6 are present trustees of a private trust known as “Parikh Goradia Trust” and respondents No.7 to 24 are beneficiaries of the said private trust. The appellant carries on business as travel agent and also inter alia of running a restaurant called “Woodlands Garden Cafe” i.e. respondent No.2. It was stated by respondent No.1 that the trust-Parikh Goradia Trust came into existence under an Indenture of trust dated 01.04.1976. Clause 3 of the said Indenture provides that the trust shall come to an end on 30.09.1985 and the trust fund will be divided amongst beneficiaries of the trust. However, despite the trust having come to an end on the stipulated date, the trustees thereof have failed and neglected to distribute the property and fund of the trust amongst the beneficiaries.
JUDGEMENT¬- The Single Judge of HC dismissed the Notice of Motion No.580 of 2018. The learned Single Judge noted that the ex-parte decree dated 07.10.2003 shows that an advocate was engaged on behalf of the appellant and respondent No.2 and the said advocate has filed vakalatnama and there is no question of having to thereafter serve a party personally. The High Court held that along with the affidavit, a Power of Attorney dated 29.04.1993 was said to have been executed by the appellant in favour of one K. Shrinivas Rao and there is also a rubber stamp and circular common seal of the appellant in the Power of Attorney and the Power of Attorney is said to have been notarized in Mumbai and the seal of the Notary is also visible. Pointing out that the defendant No.1 through its Power of Attorney had engaged a lawyer and there was a validly executed vakalatnama by a constituted attorney K. Shrinivas Rao and also that writ of summons was in fact served on the appellant and respondent No.2 (original defendant No.1A) by bailiff attached to the office of Sherrif of Mumbai, the learned Single Judge dismissed the Notice of Motion No.580 of 2018.
Supreme court said that :-As pointed out earlier, the suit claim was for damages. The damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. We have no reason to believe that the appellant would have benefitted by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit. Considering the nature of the claim and other facts and circumstances and in the interest of justice, we are of a view that an opportunity has to be given to the appellant to contest the suit subject to terms.
Supreme court held that :- Though various contentions have been raised as to whether appellant was served or not and entered appearance in the suit, we are not inclined to go into the merits of the contentions. In our view, an opportunity has to be given to the appellant for contesting the suit. It is because the suit was filed for recovery of damages of Rs.1 crore and respondent No.1 claimed interest @ 24% per annum.