Delhi District Court
M/S Vee Pee International Pvt. Ltd vs Manohar Lal And Others on 6 February, 2007
IN THE COURT OF MS. SHALINDER KAUR, ADJ, DELHI.
SUIT NO. 56/06
IN THE MATTER OF :-
M/S VEE PEE INTERNATIONAL PVT. LTD. .....PLAINTIFF.
VERSUS.
MANOHAR LAL AND OTHERS. .....DEFENDANTS.
ORDER:-
1. Plaintiff M/s Vee Pee International Pvt. Ltd. has filed a suit under Order XXXVII CPC for recovery of Rs. 4,00,000/- against the defendants Sh. Manojar Lal Aswani and Others. The plaintiff has moved an application under Section 151 CPC. Whereas the defendants moved an application under Order XXXVII rule 3 and under Order 1 rule 10 CPC which are under disposal vide this order.
2. It was contended on behalf of the plaintiff that the summons of appearance were served on the defendants on 20.05.06 and 23.05.06. The defendants have filed their appearance on 07.07.06 thus, the same is not within the stipulated period and the plaintiff is entitled to a decree of the suit amount. In support of the contention the judgment Kishan Bharwany Vs. V.P. Aggarwal - AIR 2002 Delhi 345 has been cited on behalf of the plaintiff.
3. Per contra on behalf of the defendants it was contended that the defendants have not received a copy of the annexures annexed with plaint and even the copy of the plaint is not legible. It was contended on behalf of the defendants that they are laymen and uneducated, having no knowledge of law. Defendant no. 1 had gone to pilgrimage in middle of May, 2006 and came back on 01.07.06. He received the summons of the suit alongwith summons of defendants no. 2 & 3 who are his real brother. Defendant no. 1 immediately booked ticket for Delhi and reached Delhi on 06.07.06 and engaged an advocate. The appearance was thus, filed on 07.07.06. The delay in filing the appearance is neither intentional nor deliberate but due to the circumstances as stated above, thus, the same may be condoned.
4. It was further contended that M/s Heena Garments is the Sole Proprietorship concern of defendant no. 1. Defendants no. 2 & 3 are having their separate business at different places. They have got no right, title or interest in the proprietorship concern of defendant no. 1 and not even a single transaction has been entered by defendants no. 2 & 3 on behalf of M/s Heena Garments. Thus, they have been falsely implicated in the suit by the plaintiff. They are neither necessary nor proper or proforma party in the suit. There is not privity of contract between the plaintiff and defendants no. 2 & 3 thus, their names be allowed to be struck of from the array of parties.
5. It was contended on behalf of the plaintiff that the defendants have been properly served on 20.05.06. The personal appearance of any of the defendants was not required and they could have entered their appearance through counsel. The fact that defendant no. 1 had gone for pilgrimage and thus, the appearance could not be put in time is irrelevant. It was contended that accordingly the defendants have failed to show sufficient cause for not entering appearance in time. It was contended that the defendants no. 2 & 3 are the necessary parties to the suit as defendant no. 2 is the Manager of M/s Heena Garments and defendant no. 3 is the Assistant Manager of the firm.
6. Order XXXVII rule 3 (7) CPC provides that, "The delay of the defendant in entering the appearance for sufficient cause may be condoned."
7. The summons of appearance have been received on 20.05.06. The defendant has taken the plea that in middle of May, 2006 he had gone for pilgrimage and came back on 01.07.06. The photocopy of the ticket showing that defendant no. 1 came to Delhi on 05.07.06 has been filed on record. The appearance has been filed on 07.07.06. Thus, the defendants have been able to show sufficient cause for not entering the appearance within the stipulated period. However, the delay caused to the plaintiff can be compensated with cost. The application moved on behalf of the defendant under Order XXXVII rule 3 CPC is allowed subject to cost of Rs. 500/-.
8. The plaintiff has filed the suit against defendant no. 1 as Proprietor of M/s Heena Garments. Defendant no. 2 & 3 have been impleaded as Manager and Assistant Manager of M/s Heena Garments. No document has been placed on record to show that any transaction on behalf of the firm has been carried out by defendants no. 2 & 3. Even the disputed cheques have been signed by defendant no. 1. Accordingly, defendants no. 2 & 3 are not necessary parties thus, their name be deleted from the array of the defendants. The application moved on behalf of the defendant under Order 1 rule 10 CPC is accordingly allowed.
9. As the application praying for condonation of delay moved on behalf of the plaintiff has been allowed thus, the application moved on behalf of the plaintiff under Section 151 CPC has become infructuous.
ANNOUNCED IN THE OPEN COURT TODAY ON 06.02.2007.
(SHALINDER KAUR) ADDL. DISTT. & SESSIONS JUDGE, DELHI.
06.02.2007.
At 1.25 pm. Present: None.
Vide orders announced of even date on separate sheets, the application moved on behalf of the defendants u/o 37 rule 3 CPC is allowed subject to cost of Rs. 500/-. Another application moved on behalf of defendant u/o 1 rule 10 CPC is also allowed.
Application moved u/s 151 CPC on behalf of the plaintiff has become infructuous.
Let amended memo pf parties be filed. An appropriate application for issuance for summons of judgment be moved. Put up for further proceedings on 02.03.07.
ADJ/Delhi/06.02.2007.