Delhi District Court
True Link Finance Ltd. vs Ramesh on 9 July, 2014
True Link Finance Ltd. Vs Ramesh
IN THE COURT OF SH. VISHAL PAHUJA: CJ04 (SOUTH):
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No.06/2014
True Link Finance Ltd. ... Plaintiff
Versus
Sh.Ramesh Kumar & Ors. ... Defendants
ORDER
(on plaintiff's application under Order XXXVII Rule 4 CPC)
1. Vide this order of mine, I shall decide the application under Order XXXVII Rules 4 read with Section 151 CPC for seeking setting aside the judgment/decree dated 25.02.14 and seeking permission to file an application for leave to defend.
2. Ld. Counsel for the defendant no.2 has argued that defendant no.2 is a layman and unqualified person who is unaware about the legal technicalities of the Code of Civil Procedure and he was under the impression that he was summoned for NDOH i.e. 25.02.14 and he could not appeared within statutory period. Ld. Counsel further argued that in the interest of justice mere technicalities should not be considered and the justice should be administered by over looking the same. Arguing further Ld. Counsel submitted that there are triabal issues which can be decided by leading evidence CS No. 06/2014 1 of 4 True Link Finance Ltd. Vs Ramesh by defendant no.2 for proving his defence. As such agreement relied upon by the plaintiff does not bear the signatures of defendant no.2 nor defendant no.2 stood as guarantor for defendant no.1 and it is in collusion between plaintiff and defendant no.1 that suit has been filed and subsequently decreed. While arguing the Ld. Counsel relied upon the judgment Shakuntala Devi Jai Vs Kuntal Kumar and Ors, N. Balakrishnan Vs. M. Krishnamurthy, HDFC Vs Anil Laul, Babu Lal Yadav Vs. R. S. Yadav & Co. & Anr.
3. On the other hand, Ld. Counsel for the plaintiff strongly opposed the application and without filing any written reply he chose to argue the same orally. It is submitted by the plaintiff that all the details which were in the knowledge of defendant no.2 were provided to the plaintiff at the time of executing the documents and preforming as guarantor to defendant no.1. It is further argued that by merely denying each and everything in totality, the defendant no.2 cannot make out any ground for getting his leave to defend application allowed. It is further argued that the defendant has taken the plea of being layman and ignorant of law which cannot be considered as the summons under order XXXVII CPC were sent in the prescribed proforma where each and everything is mentioned in detail. Hence, the application CS No. 06/2014 2 of 4 True Link Finance Ltd. Vs Ramesh of defendant no.2 is without any merit. So it is prayed by the plaintiff that the application be dismissed.
4. Arguments heard.
5. I have gone through the material placed on record and the application moved by the defendant no.1. It is important to note here that vide order dated 25.02.14 passed by Ld. Predecessor of this Court, the issue of entering into appearance by defendant no.2 has been decided. The application seeking condonation of delay on sufficient ground was also declined after hearing on merit and was dismissed. Simultaneously, the suit was decreed in favour of the plaintiff and against the defendant.
6. Order XXXVII Rule 4 CPC can be invoked only in special circumstances. At this stage, two things are to be decided. Firstly, whether the defendant has entered his appearance in time and if there is delay, whether there is sufficient ground for its delay and secondly, whether there are triable issues which can be decided by leading evidence during the trial. Herein this case, the first issue regarding entrance of appearance have been decided by this Court on merits. The delay in entering the appearance have not been condoned by this court as the ground was not considered to be sufficient. I agree to the point put forthwith by the plaintiff that ignorance of law CS No. 06/2014 3 of 4 True Link Finance Ltd. Vs Ramesh or the defendant being layman cannot be considered as sufficient ground for allowing the application as summons under Order XXXVII CPC are in prescribed proforma. As the issues has already been decided on merits, the only remedy lies with the defendant is that he can approach the Ld. Appellate Court in this regard. Hence, application stands dismissed.
Announced in the open Court on 9th Day of July 2014 (Vishal Pahuja) CJ04 (South)/Saket Courts New Delhi/09.07.2014 CS No. 06/2014 4 of 4