Delhi District Court
M.No. 108/10 Dinesh Kumar Aggarwal vs . Modi Industries on 19 May, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE CENTRAL9 DELHI
M.No. 108/10 Dinesh Kumar Aggarwal Vs. Modi Industries
19.05.2011
ORDER
1. By this order I shall dispose off an application U/o 9 Rule 7, Order 9 /Rule 13 R/w 151 CPC alongwith an application U/s 5 of the Limitation Act for condoning the delay. In the application U/o 9 Rule 13 CPC, the defendant/JD has stated that he was served with the notice from this court in the execution proceedings with regard to the decree dated 12.02.2006 passed in the above noted case on 06.09.2010 from where the defendant came to know that the said decree stands passed in the above noted suit. On inspection of the file through the present counsel engaged by the JD on 04.10.2010, it was revealed that the above noted suit for recovery of Rs. 3,78,560.67/ was filed by the plaintiff against the defendant/J.D and the summons of the said suit were also served on the defendant and memo of appearance was filed by the advocate on 06.09.2005 and thereafter the case was adjourned for 08.09.2005 on M. No. 108/10 1of6 which date vakalatnama was filed. On 18.11.05, the counsel for defendant did not appear and Ld predecessor of this court was pleased to proceed exparte against the defendant. The defendant also did not appear on the said day as it did not received any information or communication from the said advocate after 08.09.2005. Due to bonafide omission or mistake on the part of AR of defendant he did not contact the advocate therefore the said advocate thought that the defendant might have engaged some other advocate, so she did not appear and the AR of defendant also forgotten about the said case and thus none could appear any more in the said suit and defendant could not file its WS resulting in exparte order against the defendant when ultimately decretal of suit exparte in favour of plaintiff and against defendant on 16.02.06. It is stated that the suit of plaintiff is false and fabricated and plaintiff is not entitled to the amount claimed. The defendant company had no reason whatsoever but to avoid appearance or not to contest the case but under the circumstances explained in the application, the applicant fell into dark and could not contest the suit. The non appearance of defendant and his counsel on 18.11.2010 and M. No. 108/10 2of6 on subsequent dates was neither intentional nor deliberate but the same occurred and happened due to circumstances mentioned in the application. It has therefore been prayed that the exparte order dated 18.11.05 and subsequent proceedings and exparte judgment and decree dated 16.02.06 be set aside and the suit be decided on merits in accordance with law. In application U/s 5 of the Limitation Act, the applicant has prayed for condonation of delay in filing the application U/o 9 Rule 13 CPC.
2. The application has been contested by the DH who has filed the reply to both the applications. Ld. Counsel for DH has agreed that the application U/s 5 of Limitation Act has been moved on 05.10.2010 i.e after more than four years of the passing of the exparte judgment and decree dated 16.02.2006. He agreed that since there is no specific provision under the Limitation Act 1963 prescribing the limitation period for filing the application U/s 5 of the Limitation Act, the application falls under Article 137 of the Limitation Act 1963 which relates to the applications for which no period of limitation is provided elsewhere in M. No. 108/10 3of6 the schedule. The limitation period Under Article 137 is three years from the date when the right to apply accrues. The contentions of ld. Counsel for Dh is not sustainable since under Act 123 of the Limitation Act the period of limitation for setting aside a decree passed exparte begins from the date of knowledge of decree and not from the date of decree. As per application the JD came to know about exparte decree on receiving notice of execution petition on 6.9.2010 and the present application has been filed on 5.10.10. In the facts the application U/s 5 of Limitation Act is allowed. The limitation period for moving an application U/o 9 Rule 13 CPC is 30 days as per article 123 of the Limitation Act 1963, from the date of judgment/ decree. Thus even the application U/s 5 of the Limitation Act is barred by the period of limitation and hence not maintainable.
3. An application for setting aside an exparte judgment/decree can be filed U/o 9 Rule 13 CPC for setting aside the exparte decree against the defendant if he satisfies the court that summons were not duly served or that he was prevented by any sufficient cause from appearing in the suit that was called on for hearing and the court shall M. No. 108/10 4of6 make an order setting aside the decree as against him upon such terms as to cost, payment into court or otherwise as it thinks fit. There is no dispute that defendant was duly served with the summon of suit and even the vakalatnama had been filed on behalf of defendant by his advocate. The only plea which has been taken by the defendant is that the counsel for defendant did not appear on 18.11.05 and the defendant also did not appear as he did not receive any information or communication from the said advocate after 18.09.2005. At the same stretch, it has been pleaded that the AR of the defendant could not appear due to bonafide omission and mistake and the present case skipped out of his mind and thus he did not contact the said advocate and the said advocate thought that defendant might have engaged some other advocate and so she did not appear, meaning thereby that admittedly there was no negligence even on the part of counsel for defendant but the AR of the defendant himself was negligent and sleeping over the matter. The application is supported with the affidavit of Shri M.C. Tyagi, personal Manager of the defendant whereas the vakalatnama in the main case as well as in M. No. 108/10 5of6 the miscellaneous application has been signed by one Shri Anil Gupta, Vice President of the defendant. There is no document on record to establish that Shri M.C. Tyagi has been authorised by the defendant company to appear and file the present application or he was authorised to represent the defendant in the main suit. Even in the application U/o 9 Rule 13 CPC, it is stated that the present case skipped out of the mind of the AR of defendant. The name of AR of the defendant however has not been mentioned nor there is any resolution/authority letter on record in favour of Shri M.C. Tyagi. Even otherwise, the negligence on the part of the defendant does not amount to sufficient cause for setting aside the exparte judgment and decree. In view of above discussion, I do not find any merits in the application. Hence the same is dismissed. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 19.5.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
M. No. 108/10 6of6
Suit No. 213/06
9.5.2011
Present: None.
Application U/O 11Rule 1, 12 & 14 stands allowed vide separate order.
The defendant is directed to answer the interrogatories and produce the documents as per the application.
Put up on 12.7.2011.
(SUKHVINDER KAUR)
ADJ/DELHI
9.5.2011
M. No. 108/10 7of6
M. No. 108/10 8of6