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Delhi District Court

Ashok Kumar Dandona vs . Innovative Components P. Ltd. And Ors. on 19 November, 2015

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M­570/11
Ashok Kumar Dandona vs. Innovative Components P. Ltd. And Ors. 


19.11.2015
Present:        Sh.Ashok Aggarwal, Counsel for applicant/JD. 
                Sh. M.L. Kalra, Counsel for non­applicant/DH. 
1.      Arguments addressed on application U/o 9 Rule 13 CPC alongwith
application U/s 5 of the Limitation Act.  However, as submitted by Counsel
for respondent, application U/s 5 of the Limitation Act, be considered first.  

2. Applicants claim to be in receipt of the copy of the summons issued in execution at their factory when they came to know about passing of the decree against them. The other submission is that no service in suit was ever affected upon the applicants either through Process Server or through registered post. The decree in the instant matter was passed on 12.07.2010 whereas application U/o 9 Rule 13 CPC was moved on 20.10.2011. From the date of passing of the decree, application filed U/o 9 Rule 13 CPC is definitely barred by limitation whereas no date is mentioned in application U/s 5 of the Limitation Act, regarding the knowledge attained by the applicants with respect to the passing of the decree. There was no mention of the said date even in rejoinder to the application U/s 5 of the Limitation Act, however, in rejoinder to application U/o 9 Rule 13 CPC, date of knowledge was referred as 25.08.2011 when the summons were issued by the executing Court at Gurgaon. The application having been filed on 20.10.2011 from the date of knowledge is also beyond the period of limitation without any justification in the application for not filing the application within the period of limitation atleast from the date of alleged 2 knowledge. Counsel for respondent submitted that applicants have failed to show sufficient cause which prevented them from filing the application in time. The proof of sufficient cause is a condition precedent for the exercise of discretionary jurisdiction vested with the Court by Section 5 of the Limitation Act.

3. Ld. Counsel for applicants placed reliance upon 2015(3) CLJ 457 S.C. titled as GMG Engineering Industries and Ors. vs. ISSA Green Power Solution and Ors., wherein it was observed that "when no negligence, in­ action or want of bona­fide is imputable, the delay is to be condoned as discretion is to be exercised like any other judicial discretion with vigilance and circumspection. True test is to see whether applicant has acted with due diligence." In terms of the authority as placed reliance by Counsel for applicants himself, bona­fide on behalf of applicants and there being no negligence or in action, is required to be brought on record, but much less to talk about the sufficient cause, applicants even did not mention any reason for delay in filing of the application in time before this Court.

4. Ld. Counsel for respondent also placed reliance upon 201 (2013) DLT 224 titled as Abhishek Enterprises vs. M.D. Overseas Ltd. & 260 SC Sitaram Ramcharan and Ors. vs. M.N. Nagrashana, wherein inter­alia, it was held that "it cannot be disputed while dealing with question of condoning delay U/s 5 of the Limitation Act, the party has to satisfy the Court that he has sufficient cause for not preferring the application within prescribed period which shall include the whole of the period of delay and not merely for the period after prescribed period of limitation." In the instant matter as already noted that the applicants having failed to show any cause much less to be termed as sufficient cause for coming to the Court 3 belatedly in filing the application, the application U/s 5 of the Limitation Act is dismissed. As the application itself for condonation of delay has been rejected, application U/o 9 Rule 13 CPC also stands dismissed.

5. Another application is U/s 340 Cr.P.C. filed by the applicants whereby claim of the plaintiff has been termed as false and based on false deposition of plaintiff's witnesses which in reality is the challenge to the Judgment passed by the Court in which the applicants had remained ex­ parte as they preferred not to appear before the Court despite the due service upon them as held by the Court. Therefore, the challenge to the decree when the application U/o 9 Rule 13 CPC has been dismissed is not permissible in garb of application U/s 340 Cr.P.C. which application has also been filed belatedly, there­being no sufficient cause shown on record for delay in filing of the application, consequently, application U/s 340 Cr.P.C. is held not to be maintainable and is accordingly dismissed.

File be consigned to record room.

(SAVITA RAO) ADJ­01(W)/19.11.2015