Delhi High Court - Orders
Rajat Dilwali vs Rajesh Kumar Singh & Anr on 5 August, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 616/2022 & I.A. 18146/2022, I.A. 21526/2022, I.A.
22178/2022, I.A. 22179/2022, I.A. 2194/2023, I.A. 5266/2023, I.A.
5267/2023
RAJAT DILWALI .....Plaintiff
Through: Mr. Raghav Kacker and Mr. Aayush
Shukla, Advocates
versus
RAJESH KUMAR SINGH & ANR. .....Defendants
Through: Ms. Mukti Chowdhary and Ms.
Rashmi Singh, Advocates
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
ORDER
% 05.08.2024 I.A. 5267/2023(for exemption from filing fair typed copies of dim annexures)
1. The registry will inform the defendants with respect to the dim annexures within two weeks.
2. Defendants shall thereafter file legible and clearer copies of the dim annexures, compliant with practice rules, before the next date of hearing.
3. With the aforesaid direction, the application stands disposed of. I.A. 5266/2023 (by defendants under Order VII Rule 11 of CPC)
4. Issue notice.
5. Learned counsel for the plaintiff accepts notice on behalf of the plaintiff. Reply be filed within four weeks. Rejoinder thereto, if any, be filed four weeks thereafter.
CS(OS) 616/2022 Page 1 of 12This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:09 I.A. 18146/2022 (by plaintiff seeking a decree in default), I.A. 22179/2022 (by defendants for condoning the delay of 28 days in filing leave to defend) & I.A. 21526/2022 (by plaintiff seeking clarification qua order dated 18.10.2022)
6. The plaintiff has filed I.A. No. 18146/2022 under Order XXXVII Rule 2(3) of The Code of Civil Procedure, 1908 ('CPC') seeking a decree in default against the defendants.
Submissions on behalf of Plaintiff
7. The learned counsel for the plaintiff contends that in pursuance to the advance service of the suit paper-book on the defendants in September 2022, one Mr. Girijesh Pandey, Advocate appeared on behalf of the defendants on 18.10.2022 at the hearing held before the learned Joint Registrar (J). He states that consequently summons for appearance through Court process under Order XXXVII Rule 2(2) CPC was not issued to the defendants as Mr. Girijesh Pandey, Advocate accepted summons.
8.1 He states that, however, Mr. Girijesh Pandey and/or defendants failed to file a memo of appearance as per the mandate of Order XXXVII Rule 3(1) of CPC within ten days and, therefore, the plaintiff herein is entitled to seek a default decree against the defendants on the presumption of deemed admissions of the averments in the plaint.
8.2 He states that this application has been filed by the plaintiff at the earliest on 02.11.2022.
8.3 He fairly concedes that Mr. Girijesh Pandey, Advocate has not filed any vakalatnama or memo of appearance on record authorizing his appearance on 18.10.2022.
8.4 He states that the defendants' denial as regards the engagement of Sh. Girijesh Pandey, Advocate for his appearance on 18.10.2022 is not bona fide. He relies upon the reply affidavit filed by Mr. Girijesh Pandey, CS(OS) 616/2022 Page 2 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:09 Advocate dated 09.01.2023 in I.A. No. 21526/2022 to contend that Mr. Girijesh Pandey appeared on the oral instructions of the defendants. He states that due to this wrongful denial, the application of the defendants i.e., I.A. No. 22179/2022 seeking condonation of delay ought to be dismissed. Submissions on behalf of Defendants
9. The learned counsel for the defendants contends that defendants learnt about the institution of the suit upon receipt of notice in I.A. No. 18146/2022. She states that notice in I.A. No. 18146/2022 was issued by the Court on 09.11.2022 and was served on the defendants on 25.11.2022 through e-mail and on 05.12.2022 through post. She states that thereafter, defendants filed I.A. No. 22178/2022 under Order XXXVII Rule 3(5) of CPC on 23.12.2022 seeking leave to defend, alongwith I.A. No. 22179/2022 seeking condonation of delay of 28 days in filing I.A. No.22178/2022 [application seeking leave to defend].
9.1 She states that Mr. Girijesh Pandey, Advocate was not engaged by the defendants to enter appearance in these proceedings on 18.10.2022. She states that it is a matter of record that no vakalatnama was executed by the defendants in favour of Mr. Girijesh Pandey, Advocate authorizing his appearance for 18.10.2022.
9.2 She states that upon receipt of advance service of the suit paper-book on 23.09.2022, the defendants, who are resident(s) of District Gonda in Uttar Pradesh contacted a lawyer Mr. Vijay Tiwari practicing in Lucknow for his advice. She states that while it is correct that Mr. Vijay Tiwari informed them that he has acquaintances practicing in Delhi High Court, however, the defendants did not authorize Mr. Girijesh Pandey, Advocate to appear in these proceedings on 18.10.2022.
9.3 She states that the defendants have acted with reasonable diligence CS(OS) 616/2022 Page 3 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 and have entered appearance promptly on 16.12.2022. She states that non- filing of memo of appearance by defendants within ten (10) days from 18.10.2022 is for the reason that defendants were not aware about this mandate in the absence of receipt of formal summons under Order XXXVII Rule 2(2) of CPC.
9.4 She states that without prejudice to the aforesaid submissions, assuming that summons for appearance were served on the defendants through Mr. Girijesh Pandey, Advocate on 18.10.2022, the delay in entering appearance and filing leave to defend is 28 days and the same may be condoned under Order XXXVII Rule 3(7) of CPC in the given facts. 9.5 She states that there has been no undue delay in joining the proceedings and no prejudice would be caused to the plaintiff if the defendants' application I.A. No. 22178/2022 seeking leave to defend is heard on merits. She states that for instance qua defendant no. 2 admittedly there is no written agreement with respect to his alleged liability and the decree in default sought against defendant no. 2 cannot be granted even on a deemed admission.
9.6 She states that the defendants hereby waive service for summons of judgment in Form No. 4A in Appendix B under Order XXXVII Rule 3(4) CPC. She states that the defendants have filed I.A. 22178/2022 seeking leave to defend as per Order XXXVII Rule 3(5) CPC and notice be issued in the said application.
Findings and Analysis
10. This Court has heard the learned counsels for the parties and perused the record.
11. The present summary suit has been filed by the plaintiff under Order XXXVII CPC for recovery of a sum of INR 2,58,61,774/- alongwith CS(OS) 616/2022 Page 4 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 pendente lite interest at 12% and future interest. The suit has been filed for recovery of the loan advanced to defendant no. 1 on the basis of a Loan Agreement dated 25.10.2017 executed between the plaintiff and defendant no. 1 ('Loan Agreement'). Defendant no. 2 has been arrayed as a party on the averment that he is jointly and severally liable to pay the loan amount availed by defendant no. 1. The liability of defendant no. 2 is based on his oral undertaking, which is sought to be proved by the testimony of the witnesses to the Loan Agreement.
12. The controversy arising for adjudication in these applications is to determine the date on which the defendants have entered appearance in this suit for the purpose of application of the consequences of Order XXXVII Rule 3 (1) of CPC and Order XXXVII Rule 2 (3) CPC.
13. The suit was filed with the registry on 03.10.2022 and the first effective hearing in the suit was 18.10.2022 before the learned Joint Registrar (J). In fact, the suit is deemed to have been instituted on 18.10.2022. Though, initially on 18.10.2022 the learned Joint Registrar (J) directed issuance of summons for appearance of the defendants in the prescribed format i.e., Form No. 4 in Appendix-B as per the mandate of Order XXXVII Rule 2 (2) of CPC; however, the said direction was recalled as one Mr. Girijesh Pandey, Advocate joined the proceedings through video conferencing and accepted summons for appearance on behalf of both the defendants.
14. Consequently, no summons in Form No. 4 in Appendix-B were issued through Court process to the defendants in the present suit.
15. However, Mr. Girijesh Pandey, Advocate failed to file his memo of appearance within 10 days i.e., on or before 28.10.2022 as per the mandate of Order XXXVII Rule 3(1) CPC.
CS(OS) 616/2022 Page 5 of 12This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10
16. It is a matter of record that Mr. Girijesh Pandey, Advocate also failed to file his vakalatnama as per Order III Rule 4 CPC1 and Chapter V Rule 1 Delhi High Court (Original Side) Rules, 20182 ('DHC Rules, 2018') for the appearance entered on 18.10.2022.
17. Upon non-filing of the memo of appearance by Mr. Girijesh Pandey, Advocate as per the mandate of Order XXXVII Rule 3(1) CPC, 1
4. Appointment of pleader. --(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be 3 [filed in Court and shall, for the purposes of sub-rule (1), be] deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. 4 [Explanation. --For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,-- (a) an application for the review of decree or order in the suit, (b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit, (c) an appeal from any decree or order in the suit, and (d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.] 5 (3) Nothing in sub-rule (2) shall be construed-- (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1). (4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating-- (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorised to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.
2"1. Execution and filing of Vakalatnama.-(i) Every Vakalatnama shall be duly signed by the party and contain, as and where appropriate, the seal of the party, name of the party signing and on whose behalf he has signed. (ii) Where a Vakalatnama is executed by an agent/ authorized representative of a party, copy of the instrument/ document, of such authorization, shall accompany the Vakalatnama. (iii) Should the person signing the Vakalatnama, cease to be an agent/ authorized representative of a party, a fresh Vakalatnama, in accordance with these Rules, shall be executed forthwith. (iv) Where several persons sign a single Vakalatnama, they must put their signatures seriatim, mentioning, their serial number and name in brackets corresponding to their respective serial number and name mentioned in the memo of parties. (v) Where a single Vakalatnama has been executed in favour of more than one Advocate, names and particulars of all the Advocates must be provided therein in accordance with these Rules. (vi) The case number and its cause title must be clearly mentioned in the Vakalatnama. (vii) An Advocate on his filing a Vakalatnama, duly executed by a party that discloses name and designation of the party, shall be entitled to act, to plead for that party in the matter and to conduct and prosecute all proceedings that may be taken in respect of such matter or any application connected with the same, or any decree or order passed therein, including proceedings in taxation and applications for review, execution and appeal in the Court, and take all such other steps as he may be specifically authorized by the Vakalatnama"CS(OS) 616/2022 Page 6 of 12
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 consequently, the plaintiff herein filed an application i.e., I.A. No. 18146/2022 on 02.11.2022 under Order XXXVII Rule 2(3) of CPC seeking a default decree against the defendants on the plea that there is deemed admission of the contents of the plaint.
18. The Court notice in I.A. No. 18146/2022 was served on the defendants through WhatsApp and email on 25.11.2022 and through post on 05.12.2022. It is the stand of the defendants that it was after receiving the aforesaid Court notice in I.A. No. 18146/2022, the defendants became aware about the formal institution of the suit and commencement of proceedings. Accordingly, the defendants filed two applications on 23.12.2022, I.A. No. 22178/2022 seeking unconditional leave to defend and I.A. No. 22179/2022 seeking condonation of delay of 28 days in filing the leave to defend.
19. The defendants state that Mr. Girijesh Pandey, Advocate was not engaged by them or authorized by them to enter appearance on their behalf on 18.10.2022. The defendants explained that after receiving the advance service of the suit on 23.09.2022 through email, prior to its actual listing for hearing before the Court, the defendants had reached out to Mr. Vijay Tiwari, Advocate based out of Lucknow for his assistance in engaging a counsel to represent them in the suit proceedings. The defendants state that they are unaware about the instructions issued by Mr. Vijay Tiwari to Mr. Girijesh Pandey for appearing for the defendants in these suit proceedings held on 18.10.2022.
20. The plaintiff has opposed the I.A. No. 22179/2022 seeking condonation of delay on the ground that the defendants are bound by the actions of Mr. Girijesh Pandey, Advocate who entered appearance on 18.10.2022. The plaintiff states that the affidavit filed by Mr. Girijesh Pandey in I.A. No. 21526/2022 clearly bears out that he was duly instructed CS(OS) 616/2022 Page 7 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 by Mr. Vijay Tiwari, Advocate to enter appearance on behalf of the defendants on 18.10.2022. The plaintiff states that the messages exchanged between Mr. Girijesh Pandey and Mr. Vijay Tiwari on WhatsApp duly bears out his engagement. He states that the defendants in reply to the interrogatories filed on 14.03.2023 in answer to paragraph 3 have wrongly disputed forwarding the copy of the plaint served on them in September, 2022 to Mr. Vijay Tiwari.
21. In the considered opinion of this Court, the application I.A. No. 22179/2022 filed by defendants seeking condonation of delay deserves to be allowed for the reasons recorded hereinafter.
22. Mr. Girijesh Pandey, Advocate, who entered appearance on 18.10.2022 was obliged to file his vakalatnama and/or his memo of appearance on behalf of the defendants as per Order III Rule 4 CPC and Chapter V Rule 1 of DHC Rules, 2018. The learned Joint Registrar while recording the submissions of Mr. Girijesh Pandey, Advocate on 18.10.2022 acted on the reasonable belief that the counsel will comply with the obligations of CPC and DHC Rules, 2018.
23. Mr. Girijesh Pandey, Advocate having entered appearance on behalf of the defendants and accepted summons, could not have withdrawn unilaterally from the suit proceedings and ought to have sought a discharge as per Chapter V Rule 5 of the DHC Rules, 20183 so as to bring to the notice of the Court as well as the plaintiff that he has subsequently not received authorization to file a vakalatnama and/or memo of appearance both under Order III CPC and Order XXXVII Rule 3(1) CPC.
24. In these circumstances, the Court would have taken steps to issue 3 "5. Notice of discharge to a client--An Advocate in a suit or matter desiring to obtain an order for his discharge, shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the application"
CS(OS) 616/2022 Page 8 of 12This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 summons to the defendants in Form No. 4 in Appendix B as per Order XXXVII Rule 2 (2) of CPC.
25. The learned Joint Registrar (J) on 18.10.2022 was led to believe that Mr. Girijesh Pandey, Advocate has duly been authorized to represent the defendants and it was on this basis the learned Joint Registrar dispensed with the issuance of summons in Form No. 4 in Appendix B under Order XXXVII Rule 2 (2) of CPC. It was implicit in the order dated 18.10.2022 that the Mr. Girijesh Pandey, Advocate undertook to file a memo of appearance as per Order XXXVII Rule 3(1) CPC.
26. In the facts noted above, an anomalous situation was created where an Advocate (Mr. Girijesh Pandey) after entering appearance in the Court proceedings and accepting summons has failed to file his vakalatnama as per Order III CPC and Chapter V Rule 1 of the DHC Rules. The plaintiff's application I.A. 18146/2022 seeking a decree in default proceeds on the presumption that defendants have been duly served with the summons under Order XXXVII Rule 2 (2) CPC and have thereafter defaulted in filing a memo of appearance. However, this assumption of the plaintiff is incorrect in the aforesaid facts.
27. Since, the consequence of not filing a memo of appearance as per Order XXXVII Rule 3(1) of CPC can have a drastic consequence of a default decree under Order XXXVII Rule 2 (3) of CPC, therefore, this Court must satisfy itself with respect to strict compliance of service of summons under Order XXXVII Rule 2 (2) of CPC. This Court is unable to accept the appearance of Mr. Girijesh Pandey on 18.10.2022 as sufficient service of summons on the defendants for attracting the consequences of a default decree.
28. Mr. Girijesh Pandey, Advocate has relied upon the instructions issued CS(OS) 616/2022 Page 9 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 to him by Mr. Vijay Tiwari, Advocate but he has not placed on record any written communication issued to him by defendants for his engagement on 18.10.2022. He has neither filed his vakalatnama nor filed a memo of appearance as mandated by Order III Rule 4(1) of CPC and Chapter V rule 1 of DHC Rules, 2018. In these facts, this Court is of the considered opinion that the I.A. 18146/2022 filed by the plaintiff under Order XXXVII Rule 2(3) of CPC seeking a default decree cannot be entertained as this Court is unable to satisfy itself that the summons as per Order XXXVII Rule 2(2) CPC have been served on the defendants. The advance service of the plaint on the defendants on 23.09.2022 cannot be a substitute for service of summons as per Order XXXVII Rule 2(2) of CPC, unless the advocate appearing on behalf of the defendants had filed a vakalatnama as per the mandate of Order III Rule 4 (1) of CPC. In view of the non-filing of the vakalatnama by Mr. Girijesh Pandey in the facts of this case, since summons through Court process had never been served on the defendants, the plaintiff ought to have applied for issuance of summons to the defendants under Order XXXVII Rule 2(2) of CPC. This is for the reason that the consequences of default upon service of summons are drastic resulting in passing of a decree in default under Order XXXVII Rule 2 (3) CPC on the deemed admission. The contents of the form of summons as per Form No. 4 Appendix B under Order XXXVII Rule 2(2) CPC put the defendants to notice about the consequences of default of non-appearance and therefore this service of summons has to be complied with unless Mr. Girijesh Pandey, Advocate had filed his vakalatnama. Therefore, in order to invoke this provision, the plaintiff must scrupulously comply with the condition of Order XXXVII Rule 2(2) of CPC.
29. In the facts of this case the defendants after being served with the CS(OS) 616/2022 Page 10 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 Court notice in I.A. 18146/2022 on 25.11.2022 have duly and promptly entered appearance on 16.12.2022 and also filed I.A 22178/2022 on 23.12.2022 seeking leave to defend, without any undue delay. This Court is, therefore, of the opinion that the I.A. 22179/2022 seeking condonation of delay ought to be condoned and parties be heard on the merits of I.A 22178/2022 filed by the defendants seeking leave to defend.
30. It is clarified that this Court is not expressing any opinion on the veracity on the contents of the affidavit dated 09.01.2023 filed by Mr. Girijesh Pandey, however, it is a matter of record that no vakalatnama was executed by the defendants in favour of Mr. Girijesh Pandey; therefore, his engagement as a pleader on 18.10.2022 has not been proved to the satisfaction of this Court so as to attract the drastic consequence of passing a default decree under Order XXXVII Rule 2(3) CPC.
31. In view of the aforesaid findings, I.A 22179/2022 filed by the defendants is allowed and the delay in entering appearance is condoned. I.A. 18146/2022 filed by the plaintiffs is disposed of. I.A 21526/2022 filed by the plaintiff also stands dismissed.
I.A 22178/2022 (by defendants seeking unconditional leave to defend )
32. This is an application filed by the defendants under Order XXXVII Rule 3(5) CPC seeking leave to defend.
33. The statement of the counsel for the defendants, that defendants waive summons for judgment as per Order XXXVII Rule 3(4) CPC is taken on record and they are bound down to the same.
34. Issue notice.
35. The plaintiff is directed to file its reply within four weeks, rejoinder, if any within two weeks thereafter.
36. List before the Joint Registrar for completion of pleadings on CS(OS) 616/2022 Page 11 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10 16.10.2024.
37. List before the Court on 13.12.2024.
MANMEET PRITAM SINGH ARORA, J AUGUST 5, 2024/hp/AKT CS(OS) 616/2022 Page 12 of 12 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/08/2024 at 23:53:10