Delhi High Court
M/S Abhishek Enterprises & Anr vs M/S M.D.Overseas Ltd on 10 April, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.477/2012 & CM 19984/2012 (stay)
Decided on : 10th April, 2013
M/S ABHISHEK ENTERPRISES & ANR. ...... Appellants
Through: Mr.Hamid Ali, Adv.
Versus
M/S M.D.OVERSEAS LTD. ...... Respondents
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is an appeal against the order dated 25.9.2012 passed by the learned ADJ in Civil Suit no.1038/2000 (in M. No.3/2012) by virtue of which the application of the appellant under Section 5 of the Limitation Act seeking condonation of delay in filing the application under Order 9 Rule 13 CPC for setting aside ex-parte decree.
2. I have heard learned counsel for the appellant and gone through the record.
3. The main contention of the learned counsel for the appellant has been that the learned ADJ has fallen into an error by not condoning the FAO No.477/2012 Page 1 of 6 delay in filing the application under Order 9 Rule 13 CPC, although, 'reasonable explanation' was given for non-appearance and for not filing any application despite having learnt about the passing of the ex-parte decree. It will be pertinent here to mention that it was not disputed by the appellant that he learnt about the passing of the ex-parte decree in the month of April, 2011 while an application for setting aside ex-parte decree was filed on 6.1.2012 alongwith an application under Order 9 Rule 13 CPC. The ground sought for the period of delay exceeding more than 30 days was explained by contending that the father of the appellant was ill, therefore, the application could not be filed in time.
4. I have carefully considered the submissions made by learned counsel and gone through the record. The respondent had filed suit under Order 37 of the CPC for recovery of `19 lakhs or so against the appellant. This suit was filed in the Delhi High Court.
5. Notices were issued to the applicant/defendant. However, the said notices were received back unserved. Since it was not possible to serve the applicant/defendant by ordinary process, accordingly, the Court had ordered that he be served through substituted service by way of FAO No.477/2012 Page 2 of 6 publication in newspaper `Statesman' as well as by affixing a copy of the notice on the notice board of the court at the last known address of the defendant. All steps were taken by the plaintiff. The appellant/defendant did not appear and consequently he was proceeded ex-parte. The suit was transferred to the District Court on 18.9.2003 because of enhancement of pecuniary jurisdiction and an ex-parte judgment and decree was passed against the appellant on 31.3.2004.
6. The appellant/defendant had purportedly issued some cheques which were also dishonoured and accordingly, he was facing prosecution under Section 138 of the Negotiable Instrument Act. It was during the pendency of the said proceedings that the appellant learnt that the plaintiff obtained an ex parte order in the month of April, 2011. The case of the appellant was that in the suit for recovery there was no mention about the criminal complaints having been filed by the plaintiff under Section 138 of the Act nor any sincere efforts were made by the plaintiff to serve in those proceedings so far as the civil suit is concerned.
7. In any case, despite having learnt about the ex-parte decree in the month of April, 2011 the appellant filed an application under Order 9 FAO No.477/2012 Page 3 of 6 Rule 13 CPC for setting aside the ex-parte proceedings on 6.1.2012 alongwith an application under Section 5 of the Limitation Act. Reason for delay in filing the application under Order 9 Rule 13 CPC given in the application was serious illness of the father of the applicant. This explanation regarding the seriousness of the father of the applicant was not accepted by the court of learned ADJ because no details regarding the ailment, period of illness when he recovered from the illness were mentioned in the application. The learned ADJ observed that the averments made in the application seeking condonation of delay were vague. This explanation given by the appellant/defendant was not accepted by the Court in the light of the fact that the respondent/defendant specifically pleaded that the appellant had appeared in the proceedings under Section 138 of the Act on 26.7.2011, 5.10.2011, 1.12.2011 and 15.12.2011 in the proceedings u/S 138 of the NI Act. This clearly belies that the illness of his father had made him immobile and the application could be filed by him only on 6.1.2012. This explanation was disbelieved by learned ADJ holding that the appellant/defendant was not diligent in approaching the court and the reasons for his absence or for delayed filing the application did not constitute 'sufficient cause'. The FAO No.477/2012 Page 4 of 6 conduct of the appellant /defendant construed as a callous and grossly negligent. The same plea has also been urged before this Court.
8. I do not find that any reasonable person can draw any conclusion other than the one which has been drawn by the learned ADJ having regard to the facts of the case. Apart from this no doubt the law regarding condonation of delay has to be construed liberally in favour of a party but such a liberal approach cannot be adopted so as to pay premium on the gross negligent conduct of a party and also put premium on the dishonest litigant. The appellant is not an individual but a company and therefore absence or the difficulty of one person would not have brought the functioning of the company to a grinding halt.
9. In addition to this on 30.11.2012 when notice was issued this Court had directed the appellant to deposit 50% of the decretal amount with the Registrar General of this Court. This amount was also not deposited till date. Although more than four months have passed, these facts also show that the appellant plaintiff is not a bonafide person but wants to prolong the litigation.
FAO No.477/2012 Page 5 of 6
10. I accordingly feel that the learned ADJ was perfectly right in observing that as the appellant/defendant has not been able to show any sufficient cause for coming to the Court belatedly in filing the application has rightly rejected the application. Since the application itself for condonation of delay has been rejected, the application under Order 9 Rule 13 CPC also stands dismissed.
V.K. SHALI, J.
APRIL 10, 2013 'ns' FAO No.477/2012 Page 6 of 6