Delhi High Court
Indian Oil Corporation vs Mastana Jogi International (Pvt.) ... on 1 March, 1996
Equivalent citations: 1996IIAD(DELHI)280, 62(1996)DLT195
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) By this order 1 shall be disposing of I.A. No. 7767/95 moved under order Ix Rule 13 Civil Procedure Code for setting aside the decree dated 16.2.1995 and an earlier order dated 3.2.1995, whereby the plaintiff's right to file the written statement was closed. I.A. 7768/95 is another application seeking stay of the operation of the decree.
(2) The facts in brief may be noticed :- (I)The plaintiff-Indian Oil Corporation, filed this suit against the defendant for recovery of Rs. 10,57,370.62 (Rs. Ten lacs fifty seven thousand three hundred seventy and sixty two paise) alleging short supply and failure to make the supply in terms of purchase order dated 3.2.1989, placed on the defendant for the supply of consumer credit booklet and domestic consumer cards. The claim in suit is on account of higher rate paid for risk purchase and short suplies. (ii) The suit was instituted on 24.4.1992. The defendant was served for 18.3.1993, when four weeks's time was granted for filing written statement. On 12.1.1994, time was again granted to defendant, who was represented by Mr. Anil Kumar Gupta, Advocate. The written statement was not filed and the matter came up on26.4.1994,whenMr. Diwarka Chaturvedi, Advocate appeared for Counsel for the defendant. The case was directed to be listed before the Court by the Deputy Registrar on 15.7.1994. On 15.7.1994, time was sought on behalf of the defendant by Mr. Brij Bhushan, Advocate who appeared for Counsel for the defendant. Time was sought on the ground that the Counsel for the defendant was out of station. Last opportunity of six weeks' time was allowed subject to payment of Rs. 1000.00 as costs. Thereafter, on 3.10.1994, when lawyers were abstaining from work and none was present, the Court closed the right to file the written statement observing that time was being taken since 18.3.1994 and even costs had not been paid. The case was listed for judgment under Order Viii Rule 10 CPC. On 16.2.1995, the Court decreed the suit taking note of the averments made in the plaint. Mr. Diwarka Chaturvedi made a request for adjournment on the ground that Mr. Brij Bhushan, Advocate was unable to appear on account of personal reasons. This was declined by the Court.
(3) The main ground urged in the application under Order Ix Rule 13 Cpc, is that the defendant had no knowledge that the right to file the written statement had been closed on 3.10.1994. It is stated that on the said date, lawyers had been abstaining from work and none was present in the Court. It is pleaded that had the lawyers not been abstaining, the reasons for non payment of costs and for non filing of the written statement would have been explained. The submission in brief be that the Court should not have closed the right to file written statement on 3.10.1994, when none was present and lawyers were abstaining.
(4) Regarding the failure to file the written statement and the absence of the Counsel of defendant, it is stated that Mr. Anil Gupta was unable to attend the Court because of the illness of his wife. It is stated that Mrs. Prabha Gupta, wife of Counsel Mr. Anil Gupta, since April 1994 had not been keeping well and was suffering from malignant cancer of the colon. The Advocate was thus totally pre-occupied with the treatment of his wife, who had to be flown to Bombay and went through surgery in Bombay. She was brought back to Delhi and finally she breathed her last between 22.3.1995 and 23.3.1995. IT is stated that Mr. Gupta was not attending office and Court for April, 1994 and all his cases were being adjourned, even in the Supreme Court from April, 1994.
(5) It is further averred that the proxy Counsel, Mr. Diwarka Chaturvedi informed Mr. Gupta around February, 1995 that the Court did not accede to the request for adjournment on 16.2.1995 and passed some orders." The Counsel was not aware of the order passed and Mr. Gupta directed his office to apply for the certified copy of the order passed. The certified copy of the order became available on 9.5.1995. The present application was filed on 1.7.1995 i.e. the reopening of Registry aftervacation. Prayer is made for recalling of the order dated 3.10.1994 and decree dated 6.2.1995. The defendant has also assailed the decree on the ground that the plaintiff should have been asked to lead evidence and prove his case, which discretion is vested in the Court. The application is supported by the affidavit of the Managing Director of the defendant.
(6) The plaintiff in the reply filed has pleaded that the application under Order Ix Rule 13 Civil Procedure Code is barred by time. Besides it does not disclose sufficient ground for setting aside the decree that had been passed after giving repeated opportunity to the plaintiff to file written statement and it based on material on record. It is further averred that the defendant Company, which is a private limited company has singularly failed to tender any explanation for not being diligent or following up the case especially when it has directors and regular staff.
(7) I have been addressed at length by Mr. Ramesh Chandra, Senior Advocate, appearing for defendant. Mr. Ramesh Chandra argued that having regard to the extenuating circumstances arising out of the terminal illness of the wife of the Counsel for the defendant, there was sufficient cause for non appearance of the Counsel for the defendant and for not filing the written statement. Mr. Chandra very persuasively argued that the whole office of the Counsel for the defendant, whom the defendant Company had completely entrusted the defense of the case, was in disarray and the lapse had occurred on account of these tragic circumstances. Mr Chandra also argued that the Court could not have closed the right to file the written statement vide order dated 3.10.1994, when lawyers were abstaining and the reasons for the absence of the Counsel of the defendant could not be explained.
(8) Mr. P.D. Gupta, Counsel for the plaintiff, opposing the application, submitted that though the suit was instituted in 1992, the defendants have been served for March, 1993 when they failed to file the written statement. Time was thereafter granted on 12.1.1994,26.4.1994 to file written statement. Finally on 15.7.1994 time was granted till 3.10.1994, subject to payment of costs. The defendants nevertheless again failed to file the written statement. On 3.10.1994 and even till the suit was decreed on 16.2.1995. Mr. Gupta urged that the defendants, who had regular staff and officers, could not be absolved from the responsibility of being diligent in following up its case, even if some allowance was to be made on account of the illness of the Counsel's wife. As regards, the illness of the Counsel's wife, it is stated that lawyers on behalf of the Counsel for the defendant had been appearing and seeking adjournments It was for the defendants or the Counsel to arrange for representation or for filing of the written statement,if the Counsel was not available. Besides, Mr. Gupta, urged the decree/judgment itself had been passed in the presence of a Counsel, who had been appearing for the Counsel for defendant and the averment that the defendant or the Counsel were not aware of the judgment or decree that was pronounced or the nature of the order on 16.2.1995, was not credible. Mr. Gupta therefore, submits that the defendant and the Counsel had been shown utmost latitude and indulgence and no ground was made to recall the order dated 3.10.1994 closing the right to file the written statement or setting aside the decree passed on 16.2.1995 under Order Viii Rule 10 CPC.
(9) Mr. Gupta submitted that the application under order Ix Rule 13 Civil Procedure Code was barred by limitation and could not be entertained as the same had been filed on 1.7.1995, while the decree had been passed on 16.2.1995.
(10) Conscious of the need of adopting a liberal approach and of doing substantial justice for disposal of matters, on merits I would have been inclined to consider a reasonable explanation for delay in preferring the application in this case especially in view of the extenuating circumstances resulting from the terminal sickness of the Counsel's wife. However, I find that the defendants have not even preferred an application for condensation of delay. The defendants it appears have proceeded on the basis that they are entitled to exclude the time taken in supplying the certified copy of the judgment decree dated 16.2.1995. The copy had been applied on 28.2.1995 and it was made available on 9.5.1995 and therefore after excluding the time taken in obtaining the certified copy of the order the application had been filed on 1.7.1995 which was the opening day of the Court. Inspite of specific objection being taken in reply by the plaintiff, that the application under Order Ix Rule 13 Civil Procedure Code was barred by limitation, the defendant did not take any steps to move for condensation of delay.
(11) The relevant provision providing for exclusion of time taken in obtaining certified copies is Section 12 of the Limitation Act. It runs as under : Exclusion of time in legal proceedings-(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2)In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation:-In computing under this section the time requisite for obtaining a copy of the decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. It is only in the case of appeal, revision or review against a decree that the time taken in obtaining a certified copy is permitted to excluded under Section 12(3) of the Limitation Act. There is no provision for exclusion of time taken in obtaining a certified copy in case of an application for setting aside the ex parte decree. The application for setting aside of a decree is to be filed within 30 days of the decree in cases such as the instant one, where the defendants has been duly served. In the instant case, the application was therefore, liable to filed within 30 days of 16.2.1995. The plaintiff is correct in his submission that the application is barred by limitation and cannot be entertained in the absence of any application for condensation of delay.
(12) Moreover, in this case as observed earlier, the order had been passed in the presence of an associate Counsel, who was appearing for Counsel for the defendant. Besides, the file had been inspected on 20.2.1995 as well as on 2.3.1995. In these circumstances, it could not be contended that either the defendant or the Counsel appearing for Counsel for the defendant, were not aware of the order passed on 16.2.1995. As regards, Mr. Chandra's contention that in the facts of this case, the learned Judge in. exercising his discretion under Order Viii Rule 10 Civil Procedure Code should have called upon the plaintiff to prove his case. This is a matter which the defendant may urge in an appeal against the decree on merits. In any case, this plea cannot be considered by me in an application under Order Ix Rule 13 Cpc, which is otherwise barred by limitation. I am therefore, constrained to dismiss both the applications.