Oriental Bank of Commerce v. Shri Vinod Kumar

1. Whether Reporters of Local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment dated 29.4.1995 passed by the Trial Court in a suit for recovery of a sum of Rs.4,62,208.53 paise filed by the appellant Bank, against the respondent(defendant in the Court below), who was engaged by the appellant Bank as its counsel to conduct a suit on its behalf against a firm, by the name of M/s B.K.Jajodia & Anr. 2009:DHC:4467

2. The suit was partly decreed by the Trial Court to the extent of upholding the claim of the appellant Bank to recover the professional fee and miscellaneous expenses paid by the appellant Bank to the respondent for conducting the suit on its behalf. Hence a decree of Rs.746/- with pendente lite and future interest calculated @ 17 ½% p.a. till realization was passed in favour of the appellant Bank. Aggrieved with the said judgment, the appellant preferred the present appeal.

3. Very briefly, the facts of the case are that in the year 1989, the appellant Bank instituted a suit for recovery of a sum of Rs.4,62,208.53 paise against the respondent. It was alleged by the appellant bank that the respondent was engaged by it as an Advocate for drafting, instituting and conducting a suit against Ms/ B.K.Jajodia & Anr., for recovery of a sum of Rs. Rs.2,04,058.42 paise. The suit was instituted in the year 1984 but the respondent did not prosecute the same properly. As a result, the suit came to be dismissed in default on 14.10.1985. However, the respondent did not intimate the appellant Bank about the progress of the case and only upon inspection of the case file by a newly engaged counsel on behalf of the appellant Bank that it came to the knowledge of the latter that its suit was dismissed for non-prosecution on 14.10.1985.

4. It is stated on behalf of the appellant that an application for restoration of the suit was filed by it but was dismissed in November

1988. The order of dismissal has however not been placed on the record. Thereafter, in May, 1989, the appellant Bank instituted the suit for damages against the respondent on account of his negligence in conducting the suit against M/s B.K.Jajodia, entrusted to him. As noted above, the said suit was partly decreed vide judgment dated 29.4.1995.

5. Counsel for the appellant requests that the suit ought to be remanded back to the Trial Court, for it to give reasons for passing the impugned judgment. Even if such a request was to be considered favourably, the availability of the trial court record is necessary. The Registry has reported that the trial court record was weeded out on 16.6.2008. No paper book has been filed by the appellant. Vide order dated 22.5.2009, the appellant was directed to file certified copies of the pleadings and the impugned judgment. Certified copies have not been filed. Instead, some photocopies of the plaint, documents and the impugned judgment have been filed under an index dated 31.7.2009. The evidence has not been filed on the ground that the same is not available with the appellant in its records. Hence the Court does not have the benefit of the evidence led by the appellant in support of its case. As no other records are available and none is present on behalf of the respondent despite service, this Court has no other option but to decide the present appeal by referring to and replying upon the documents filed by the appellant bank on 13.7.2009.

6. Much water has flown under the bridge ever since the institution of the earlier suit. The earlier suit was instituted by the appellant bank against M/s B.K.Jajodia in the year 1984. The said suit was dismissed in default on 14.10.1985. A perusal of the records shows that after issuing the letter dated 29.10.1985 to the respondent, asking about the status of the case, there was no follow up of the case by the appellant Bank who took three years to engage a new counsel to file an application for restoration of the suit. The application for restoration of the suit came to be filed in the year 1988. The said application was rejected in November, 1988. The order of dismissal has not been filed. Counsel for the appellant is unable to furnish the reasons for dismissal of the application. There is nothing on the record to establish that the appellant Bank took any steps whatsoever to prefer an appeal against the order dismissing its restoration application. On a query being raised, counsel for the appellant Bank further states that no complaint was ever lodged by the appellant Bank against the respondent for his unprofessional conduct, by approaching the Bar Council of Delhi. The simple averment made in para 11 of the plaint is that as the appellant could not file a fresh suit against M/s B.K.Jajodia & Anr., the same being barred by limitation, it was left with no alternative but to file a suit against the respondent herein, to claim damages from him on account of his negligence in prosecuting the suit.

7. The suit out of which the present appeal has arisen came to be filed in May, 1989. The respondent/defendant did not enter appearance in the suit proceedings despite service. He was proceeded against ex parte on 24.5.1994. The impugned judgment came to be passed on 29.4.1995. The present appeal against the impugned judgment was filed by the appellant bank on 25.7.1995. The appeal was admitted on 3.8.1995. The respondent has not appeared in the present proceedings either. As noted above, no paper book has been filed by the appellant till date. In the meantime, trial court record has also been destroyed. Even the certified copies of the pleadings, documents and evidence are not on the record. No useful purpose would be served by remanding the matter back to the Trial Court. Hence, the request for remanding the case back to the trial court at this belated stage, in the absence of records, is declined.

8. The reasons for dismissal of the suit of the appellant Bank find mention in para 3 of the impugned judgment, though not inasmuch as detail as ought to have been mentioned. In para 3 of the judgment, the Trial Court observed that there is no explanation on the part of the appellant Bank for not taking prompt action after 13.8.1985, the last date on which the progress of the suit was conveyed to the appellant Bank. Having regard to the facts and circumstances of the case as noted above, and having perused the documents filed by the appellant, this Court is of the opinion that the blame for non-prosecution of the earlier suit preferred by the appellant Bank against M/s B.K.Jajodia & Anr., does not lie at the door of the respondent alone, but is to be shouldered by both, the appellant Bank and the respondent. The complete absence of any explanation for the inaction on the part of the appellant bank w.e.f. 29.10.1985, when a letter was written to the respondent asking for the status of the case, till Oct, 1988, when the restoration application came to be filed by the appellant, clearly emerges from the record. Strangely enough, the order of dismissal passed on the restoration application of the appellant Bank has also not seen the light of the day. The Court is, therefore, not aware of the reasons which weighed with the trial court in rejecting the said application. Further, the appellant Bank did not choose to file any appeal against the dismissal order, which was a legal remedy available with it, but not availed of for reasons best known to it. When the lackadaisical attitude of the respondent was to the knowledge of the officers of the appellant Bank, which fact is apparent from a perusal of their internal correspondence, then its failure to check the status of its case with the respondent for a period of three long years after, 29.10.1985, is not palatable. As a vigilant litigant, the appellant Bank was under an equal obligation to prosecute its case diligently by keeping in touch with its counsel and following up the progress of its case, which it failed to do.

9. The Trial Court therefore decreed the suit for recovery instituted by the appellant Bank, limited to recovery of process fee and miscellaneous expenses paid to the respondent for conducting the suit on its behalf. For the aforesaid reasons, this Court is not inclined to interfere with the impugned judgment. The present appeal is therefore dismissed with no orders as to costs. (HIMA KOHLI) OCTOBER 26, 2009 JUDGE mk