Delhi High Court
Nirayu Private Limited vs Mohan Lal & Co. And Others on 1 April, 1999
Equivalent citations: 1998IIIAD(DELHI)229, 77(1999)DLT426, 1998(46)DRJ337
ORDER Lokeshwar Prasad, J.
1. This order shall govern the disposal of an application (IA 931/96), filed on behalf of the defendants 1,2,3 & 5 under Order xxxvII Rule 3(7) of the Code of Civil Procedure, 1908(hereinafter referred to as 'the CPC') seeking condensation of delay in filing the application for leave to defend the suit.
2. The facts relevant for the disposal of the above mentioned application lie in a narrow compass. The plaintiff M/s Nirayu Private Limited, through its constituted attorney Shri Kamal Kumar has filed a suit (Suit No.2815/94) for the recovery of Rs.14,63,438.58 against the defendants under Order xxxvII CPC. After the service of the summons of the suit in Form No.4, Appendix-B CPC, the plaintiff filed an application [IA 9761/95] for issue of summons for judgment on the defendants. The above said application came up for hearing before the learned predecessor of this Court on 17.10.95 and the learned predecessor of this Court vide order dated 17.10.95 directed that summons for judgment be served on the defendants on plaintiff's filing the process fee, for 9.1.1996.
3. Defendants 1,2,3 & 5(hereinafter referred to as 'the applicants') have filed the present application (IA 931/96) under Order xxxvII Rule 3(7) CPC with the prayer that delay in filing the application, seeking leave to defend the suit be condoned for reasons stated in the application. The main reason advanced by the applicants in the above said application for condoning the delay is that the summons for judgment have not been served on the applicants in accordance with the mandate of Order xxxvII CPC as no affidavit verifying the cause of action and the amount claimed has been served alongwith the summons for judgment on the applicants. It is stated that in the absence of the above said statutory affidavits there is no service of summons for judgment on the applicants. In the application, besides the above ground, the applicants, on merits have taken other grounds also to the effect that there were certain disputes in the partnership firm of M/s Mohan Lal & Company(defendant No.1) of which defendants 2 to 5 are partners and that the accounts of the defendant firm had not been finalised and all the relevant documents/books were lying with M/s P.N.Khanna and Company, Chartered Accountants as a result of which the applicants did not have any access or information regarding the accounts and were unable to file the application seeking leave to defend the suit. It is also stated that there were also talks for settlement/ compromise going on between the parties. It is prayed by the applicants in the above said application that delay in filing the application (IA 930/96), seeking leave to defend the suit be condoned.
4. Notice of the above application was given to the plaintiff who has filed a detailed reply. In the reply, filed on behalf of the plaintiff, it is stated that the present application, filed on behalf of the applicants is not maintainable in the eyes of law and is liable to be dismissed with costs. It is stated that summons for judgment were served on the defendants in accordance with law and the defendants/applicants have taken the false plea which is malafide and the applicants are not entitled to any indulgence by this Court. It is stated in the reply that the applicants are only prolonging and delaying the proceedings by making the false averments. It is stated that the application being frivolous be dismissed with costs and the suit filed by the plaintiff be decreed as prayed for as there is no application for leave to defend in the eyes of law on behalf of the defendants within limitation.
5. I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. Order xxxvII Rule (3)(7) CPC which is relevant for deciding the above said application reads as under:-
"The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit."
6. The words 'sufficient cause' occurring in the above said sub-rule are of utmost significance.Though the expression 'sufficient cause' has not been defined but it must mean a cause which is beyond the control of the party invoking the aid of the same. In other words any cause, which prevents a person approaching the Court within time, is sufficient. In doing so it is a test of reasonable man in normal circumstances which has to be applied. The test whether or not a 'cause' is 'sufficient' is to see whether it could have been avoided by the party by the exercise of due care and attention. In other words whether it is a bonafide cause, in as much as nothing shall be deemed to be done bonafide or in good faith which is not done with due care and attention. The quantum or extent of delay has no direct nexus in law with the sufficiency of cause to condone the delay and these two are diverse and independent factors. In a given case if sufficient cause to the satisfaction of Court is not made out, even a relatively small delay cannot be condoned whereas if the Court is satisfied of the sufficiency of cause it may condon even a long delay.
7. In the light of the above settled legal position it is to be seen as to whether the applicants have shown 'sufficient cause' within the meaning of sub-Rule(7) of Rule(3) Order xxxvII CPC. As already stated, the applicants in the above said application have stated that they have not been served with the summons for judgment in accordance with the mandate of Order xxxvII CPC as no affidavit verifying the cause of action has been served upon them alongwith the summons for judgment. Besides the above ground they have taken other grounds also. As regards the other grounds, other than the one stated above, the same have failed to impress this Court and, therefore, I proceed to deal with the contention raised that in case the service of summons in Form No.4-A Appendix-B CPC is taken to have been proper, the applicantion (IA 930/96) seeking leave to defend the suit would be barred by limitation.
8. In so far as the above aspect is concerned, as already stated, the grievance of the applicants is that since they had not been properly served with the summons for judgment there was no occasion for them for applying for leave to defend the suit.
9. As regards service of summons in Form No.4-A Appendix-B CPC, the dispute principally revolves around sub-rule (4) of rule (3) Order xxxvII CPC which runs as under:-
"If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No.4A in Appendix-B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service, supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the suit."
10. On a bare reading of the above provisions of sub-rule(4) rule (3) Order xxxvII CPC it is apparent that the same provides not only for the service of summons for judgment by the plaintiff in Form No.4-A Appendix-B CPC but also of summons being "supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the suit." Thus the language of sub-rule(4) itself makes it apparently clear that summons for judgment in Form No.4-A must necessarily be accompanied by an affidavit as referred to in the said sub-Section and if that be so, the defendant would not be taken to have been properly served unless and until the said affidavit is also served upon him.
11. In view of the position explained above, for deciding the above question it is necessary to examine as to whether the summons in Form No.4-A Appendix-B CPC were served on the applicants in accordance with the statutory provisions of sub-rule(4) Rule(3) Order xxxvII CPC. As already stated, the application filed on behalf of the plaintiff for the issue of summons for judgment (IA 9761/95) came up for hearing before the learned predecessor of this Court on 17.10.95 and the learned predecessor of this Court vide order of even date directed that summons for judgment be served on the defendants. The office note dated the 20th October, 1995 (in Part II of the file) recorded while complying with the above said orders of the Court, is of significance which reads as under:-
"Reference order dated 17.10.95. One set summon for Judgment for 9.1.96 to the counsel for the defendants Shri Mukul Talwar, Advocate is added. May issue."
12. From the above office notice which was the first step in the directions of service of summonses for the judgment on the applicants it is clear that the office did not notice any defect in the process(summonses for judgment) which was to be issued in compliance with the orders of the Court. Had there been any defect/short coming in the process, as pleaded by the applicants/ defendants, the office decidedly would have pointed out the same. Moreover, the process(summons for judgment) issued for service on the defendants/applicants in the present case were not received by a layman, but by a duly authorised Advocate, namely, Sh. Mukul Talwar. Sh. Mukul talwar, Advocate, while acknowledging the receipt of the summonses for judgment on behalf of the defendants/applicants had taken all precautions, which fact is evident from his note recorded by him under his signatures on the copy of the summonses for judgment in token of his having received the same on behalf of the defendants/applicants. Had the process(summonses for judgment) been defective, as is being contended by the applicants/defendants, in that event, decidedly Sh. Mukul Talwar, who is an Advocate and is supposed to be well conversant with the above statutory provisions, would have decidedly mentioned the above fact in his above mentioned note, recorded by him under his signatures on the copy of the summonses for judgment in token of his having received the same on behalf of the defendants. No such note, pointing out any such defect, has been recorded by said Sh. Mukul Talwar while acknowledging the receipt of the process on behalf of the defendants/applicants.
13. The summonses decidedly were not received by the applicants themselves and the same on their behalf were received by their Advocate Sh. Mukul Talwar. Thus the best person to say whether the same were with the statutory affidavit or were without the same, would have been Sh. Mukul Talwar, Advocate. No affidavit of said Sh. Mukul Talwar, Advocate has been filed by the applicants in support of their contention and no explanation whatsoever has been offered by the applicants for not filing the same.
14. In view of the position explained above, in my opinion, there appears to be no force in the plea of the applicants/defendants which appears to be an after thought and deserves to be rejected.
15. In view of the above discussion, the above mentioned application, filed by the applicants, seeking condensation of delay in filing the application for leave to defend is liable to be rejected and accordingly the same is dismissed with no order as to costs.
IA 930/96(Under Order xxxvII Rule 3 Sub-Rule(3) CPC
16. In view of my decision on application (IA 931/96) the above mentioned application seeking leave to defend the suit filed on behalf of defendants 1,2,3 & 5 is liable to dismissed being barred by limitation. Accordingly, the same is dismissed with no order as to costs.
Suit No.2815/9417. All the defendants, including defendant No.4 stand duly served with summonses for judgment. No application seeking leave to defend the suit has been filed by any of the defendants within the prescribed time limit. The application(IA 930/96) filed by defendants 1,2,3 & 5, seeking leave to defend the suit stands dismissed being barred by time and, therefore, the plaintiff is entitled to judgment forthwith. Accordingly, the present suit filed by the plaintiff is decreed in favour of the plaintiff and against the defendants and a decree in the sum of Rs.14,63,438.58/- (Rupees forteen lacs sixty three thousand four hundred thirty eight and paise fifty eight only) is passed in favour of the plaintiff and against the defendants together with costs and pendentelite and future interest @ 18% per annum. The liability of the defendants will be joint and several. Decree sheet be drawn up accordingly and thereafter the file be consigned to record room.