Delhi District Court
M/S Roulunds Codan (India) Ltd vs Sh. Kailash Bharti on 6 February, 2007
1
IN THE COURT OF MS. SHALINDER KAUR, ADJ,DELHI.
RCA NO. 9/06.
IN THE MATTER OF :-
M/S ROULUNDS CODAN (INDIA) LTD.
REGISTERED OFFICE AT
S-23, GREEN PARK EXTEN.
NEW DELHI.
ALSO AT:
M/S ROULUNDS CODAN (INDIA) LIMITED
BADKHAISA, SONIPAT
HARYANA. .....APPELLANT.
VERSUS
SH. KAILASH BHARTI
KARTA OF M/S BHARTI ENGINEER, HUF
WZ- 2181-A, SECOND FLOOR
RAJA PARK CHOWK
RANI BAGH, DELHI. ....RESPONDANT.
ORDER:-
1. Aggrieved by the order and decre dated 19.02.2005 passed by the Learned Trial Court, the appellant M/s Roulunds Codan (India) Limited has preferred an appeal against the respondent Sh. Kailash Bharti. The appellant has also preferred an application under Section 5 of Limitation Act praying for condonation of delay in filing the appeal. The said application is 2 being considered first.
2. It was contended on behalf of the appellant that the appellant had engaged M/s R.K. Marwaha & Company, advocates to look after the matter before the Ld. Trial Court who had assured the appellant that they are taking proper steps in the matter. They further informed the appellant that they have already filed the written statement in the matter and the appellant need not to worry. Believing the words of the previous counsel the Authorized Representative of the appellant did not appear in the matter and the instructed the counsel to appear. The appellant was shocked and surprised to receive an information letter from their banker's on 18.01.06 when they came to know that an amount has been attached against the decree passed by the Ld. Trial Court. Immediately they tried to contact the previous counsel who was not available. Therefore, the appellant engaged a new counsel and filed the appeal.
3. It was contended that from the date of knowledge of passing of the decree, the appeal has been filed within time. In case there is a delay in filing the appeal the same may be condoned as it would cause irreparable loss and injury to the appellant as the respondent has filed false, frivolous and time barred suit. It was also contended that appellant should not be 3 allowed to suffer due to the negligence of his previous counsel. In support of these contentions the following judgment have been cited on behalf of the appellant.
(i) Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and Others - AIR 1987 Supreme Court 1353.
(ii) G. Ramegowda Major Etc. Vs. The Special Land Acquisition Officer, Banglore - AIR 1988 Supreme Court 897.
(iii) State of Haryana Vs. Chandra Mani and Others -
AIR 1996 Supreme Court 1623.
(iv) Balraj Taneja & Anr. Vs. Sunil Madan & Anr. -- JT 1999 (6) SC 473.
4. Per contra on behalf of the respondent it was contended that the application is without cause of action. The appellant has failed to assign any sufficient cause for not preferring the appeal within the period of limitation. Thus, the same is not maintainable. The other averments raised in the application have been denied on behalf of the respondent.
5. The Ld. Trial Court has passed the impugned judgment and decree dated 19.02.2005. The appeal has been preferred on 4 15.02.06. Perusal of the Trial Court Record shows that on 20.08.2004 the Authorized Representative of the defendant had appeared. The defendant was directed to file written statement within 30 days and the matter was listed for framing of issues on 15.10.2004. On the said date of hearing the matter was listed for 24.12.2004 in view of office circular dated 14.10.2004. On 29.12.2004 the Ld. Presiding Officer of the court was on leave thus, the matter was posted for 25.01.2005. On the said date of hearing the right of the defendant to file written statement was closed as none had appeared on behalf of the defendant. The counsel for the plaintiff sought an opportunity to file an application under Order VIII rule 10 CPC. Thereafter, the matter was listed for 19.02.2005. On the said date of hearing on the application moved on behalf of the plaintiff under Order VIII rule 10 CPC the suit of the plaintiff was decreed.
6. On behalf of the appellant the plea has been raised that the summons of the suit were received on 20.08.2004. The Authorized Representative of the appellant company appeared and sought time to file written statement and the matter was adjourned to 15.10.2004. The appellant engaged the counsel M/s R.K. Marwah and Company on 15.10.2004. The appellant sought information from the counsel regarding written statement. The counsel told him that the court has been changed and he shall 5 prepare the written statement till the next date of hearing. Thereafter, the counsel sent draft of the written statement which were finalized and the written statement was signed by the appellant. On inquiries regarding the status of the case, it was narrated by the previous counsel that they are taking care of the matter and the written statement has been filed. Thus, the appellant believed the words of the counsel and trusted him as he was also doing other matter for the company.
7. It was contended that thereafter, the counsel had been giving various dates of hearing and stated that the presence of the officials of the appellant was not required and they are taking care of the matter. On 18.01.2006 the appellant was surprised to receive a letter from their bankers stating that the bank account of of the Company has been attached against the decree passed by the Ld. Trial Court. The appellant contacted the counsel but the advocates were on strike and the appellant could not contact his previous counsel. Thus, their Authorized Representative inspected the judicial file and obtained the certified copy. On receipt of the certified copy it transpired that the Ld. Trial Court was pleased to pass impugned judgment against the appellant due to non appearance and as no written statement was filed in the case.
68. On behalf of the respondent it was contended that even if the appellant came to know about the passing of the decree on 18.01.2006 still it has failed to assign any cogent reasons for not preferring the appeal till 15.02.2006. It was contended that the appellant has stated that the application seeking condonation of delay has been filed as a precautionary measures as the appellant has stated that the appeal is within the period of limitation. It was further contended that the negligence of the counsel in each and every case cannot be made a ground for condonation of delay. In support of these contention the following judgment have been cited on behalf of the respondent.
(i) Ramlal and Others Vs. Rewa Coalfields Ltd. -- AIR 1962 Supreme Court 361.
(ii) Mata Din Vs. A. Narayanan - AIR 1970 Supreme Court 1953.
(iii) Badri Bhagat Jhandewalan Temple Society and Others Vs. Delhi Development Authority - AIR 2003 Delhi 351.
(iv) Gloria Chemicals Vs. R.K. Cables and Others - AIR 1988 Delhi 213.
9. In the judgment Ramlal and Others Vs. Rewa Coalfields Ltd. (Supra) Hon'ble Supreme Court has observed 7 that, "In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for executing delay is shown discretion is given to the Court to condone delay and admit the appeal."
10. In Mata Din Vs. A. Narayanan (Supra) the Hon'ble Supreme Court has held that, "Mistake of counsel will not in every case by itself be sufficient ground to condone delay - Delay in filing appeal due to earlier filing of appeal in wrong forum on mistaken advice of counsel - Nothing in the case to show that error of counsel was tainted by any malafide motive - Court would be justified in extending time."
11. In Gloria Chemicals Vs. R.K. Cables and Others (Supra) it has been held by the Hon'ble Supreme Court that, "Negligence on part of counsel is not itself sufficient to allow the application - Also, even if counsel is found negligent, plaintiff should not suffer because of negligence of agent appointed by 8 defendants."
12. In Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and Others it has been observed by the Hon'ble Supreme Court that, "Courts should adopt liberal approach - Reasons for adopting such approach stated."
13. Perusal of Trial Court record shows that the Vakalatnama of M/s R.K. Marwaha & Company Advocates has been filed on record on behalf of the defendant. Thus, the appellant had assigned its case to an advocate. It has been contended on behalf of the appellant that the advocate had assured the appellant to diligently contest the case on its behalf. It has been stated that the written statement was prepared on behalf of the appellant which the counsel had assured that the same has been filed in the court. It has also been contended that the appellant was making inquiries from the counsel regarding progress of the case and the counsel was giving various dates of hearing.
14. It has been stated that the appellant had trusted the counsel as he was also doing other matters of the appellant company. Thus, the appellant has been able to show sufficient cause for not preferring the appeal within the period of limitation.
9It is contended that it came to know about the passing of the decree on 18.01.2005, thereafter, it contacted the previous counsel. The bar was on strike thus, the counsel can not be contacted. Accordingly, the Authorized Representative had applied for the certified copies.
15. Perusal of the record shows that the certified copies has been applied on 01.02.2006 which have been received on 07.02.2006. It was contended that after obtaining the certified copies a fresh counsel was engaged and thereafter the appeal was filed on 15.02.2006. Thus, In the interest of justice, the application filed on behalf of appellant praying for condonation of delay is allowed subject to cost of Rs. 1,000/-.
16. It was contended on behalf of the appellant that after obtaining the certified copies of the proceedings the appellant came to know that the impugned judgment was passed due to non appearance and for not filing the written statement. It was contended that the suit has been decreed on the application moved under Order VII rule 10 CPC, the notice of which was never issued to the appellant. It was further contended that as per records the alleged compressor had been admittedly returned to the respondent on 01.03.2001 thus, the contract was terminated automatically.
1017. It was contended that the suit filed by the respondent is time barred as the transaction is pertaining to the month of February, 2001 whereas the suit has been filed in the month of July, 2004. The issue regarding limitation has not been considered by the Ld. Trial Court. It was contended that the alleged agreement dated 22.02.2001 has been forged and fabricated and it does not bear the seal of the appellant company. Moreover, the said agreement is in admissible as it is not properly stamped. It was also contended that the respondent did not even prove its case. In support of these contentions the judgment Balraj Taneja & Anr. Vs. Sunil Madan & Anr. (Supra) has been relied upon on behalf of the appellant.
18. Per contra on behalf of the respondent it was contended that there is no merits in the submissions made on behalf of the appellant. After being duly served with the summons of the suit the Authorized Representative of the appellant had appeared and he was directed by the Ld. Trial Court to file written statement within 30 days. Thereafter, the matter was adjourned for a number of dates but the appellant neither filed the written statement nor choose to appear in the case. Thus, the right of the appellant to file the written statement was closed and the suit of the plaintiff was decreed under Order VII rule 10 CPC.
1119. Admittedly, the application under Order VII rule 10 CPC has been moved on behalf of the respondent in the absence of the appellant. On 25.01.2005 the right to file written statement of the defendant was closed in his absence and the defendant has not been proceeded exparte.
20. In Balraj Taneja & Anr. Vs. Sunil Madan & Anr. (Supra) the Hon'ble Supreme Court has held that, "If the written statement is not filed, the Court is required to pronounce judgment against the defendant. The words "against him" are to be found in rule 10 of Order 9 which obviously means that the judgment will be pronounced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or "make such order in relation to the suit as it thinks fit." These words are of immense significance, in as much as they give a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit. The Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit."
1221. It is further observed that, "In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceedings under Order 8 rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possible be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission the court can conveniently pass a judgment against the defendant. Under Order 8 rule 10 CPC, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved."
22. In the present case the appellant has raised a specific plea regarding limitation. The suit of the plaintiff is resting on a letter dated 22.02.2001. the said letter has been disputed by the appellant. Moreover, it was contended on behalf of the appellant that it had returned the compressor to the respondent on 01.03.2001 and has also made payment for extra 16 hours. The respondent has claimed that the payment of rent of Rs. 13,000/- for one week has not been made and the respondent had used the compressor for 19 hours instead of 16 hours. In the notice dated 13 03.07.2001 issued by the respondent to the appellant it has also claimed cost of pipe being a sum of Rs. 41,700/-. Thus, the respondent has to prove the said claims raised by it. Accordingly, the suit of the respondent could not have been decreed under Order VIII rule 10 CPC without affording an opportunity to the respondent to prove its case, even if the defence of the appellant was struck of. Thus, the judgment and decree passed by the Ld. Trial Court is set aside. The appellant is granted only one opportunity to file written statement on the date the case shall be taken up by the Ld. Trial Court. The delay caused to the respondent can be compensated by way of costs. The appellant is directed to pay cost of Rs. 2,000/-. It has been contended on behalf of the respondent that the decree has been satisfied thus, the respondent is directed to furnish a bank guarantee of the decreetal amount before the Ld. Trial Court till disposal of the suit.
23. The appeal is accordingly allowed. No orders as to cost are made. Appeal file be consigned to Record Room. Trial Court record be sent back with the copy of this judgment. ANNOUNCED IN THE OPEN COURT TODAY ON 06.02.2007.
(SHALINDER KAUR) ADDL. DISTT. & SESSIONS JUDGE, DELHI.
1406.02.2007.
At 3.45 pm. Present :- None.
Vide judgment announced of even date on separate sheets, the appeal is allowed. No orders as to cost are made. Appeal file be consigned to record room. Trial court record be sent back with the copy of this judgment.
Parties to appear before the Ld. Trial Court on 15.02.2007.
ADJ:DELHI:06.02.2007.