Delhi District Court
M/S Gemco Electrical Industries. Dh/ vs M/S Inder Industries on 24 March, 2007
1
IN THE COURT OF SH. P.S.TEJI ADDL. DISTRICT JUDGE :DELHI.
M-151/06
M/s Gemco Electrical Industries. DH/plaintiff.
Versus
M/s Inder Industries. Defendant/JD/applicant.
ORDER
By this order, I shall decide the application filed by the defendant/JD/applicant under Section 5 of Limitation Act for condonation of delay in filing the application under Order 9 Rule 7 / 9 Rule 13 read with Section 151 CPC for setting aside exparte order dated 7.2.2006 and exparte judgment dated 10.4.2006.
2. I have herd the leaned counsel for the parties.
3. In the present case, the defendant was proceeded exparte on 7.2.2006 and the decree was passed on 10.4.2006 and thereafter the present application for condonation of delay as well as under Order 9 Rule 13 CPC was filed on 2.11.2006. The plea taken by the JD/applicant is that in the month of January, 2006, lawyers were on strike and the defendant contacted Mr. Bhalerao, advocate who informed him that due to the strike nothing was happened in the matter 2 and it was simply adjourned and thereafter, whenever the defendant contacted the advocate, advocate informed that there is no change in the circumstance and if and when the strike was over the defendant would be apprised accordingly. Thereafter, when the defendant's partner Sh. Devendra Jain himself contacted, defendant's advocate in June, 2006, he was told that the courts are closed for vacations and would find out about the same on reopening on 3.7.2006. It is further mentioned in the application that meanwhile the defendant got extremely busy with its business and some on going financial crises/disputes with its various purchasers/buyers, he was under the pressure of recovering the losses suffered due to the rain in Mumbai and he lost the track of suit and was unable to follow the counsel uptill September, 2006. It is further submitted that in or around the end of September, 2006, defendant came to know from various market sources that the plaintiff had started making tall claims and boasting about the fact that it was now the sole owner of the trade mark in suit and once again Sh. Devindra Jain partner of the defendant personally contacted the counsel over the telephone only to be told that the strike 3 was long over and accordingly on asking about the next date of hearing and the status of the matter, advocate told that because of not receiving instructions he stopped keeping watch and appearing in the matter. So, this came as a rude shock as it was far from the actual situation since as per the assurance of advocate, who was unable to give particulars of the case of the defendant within next two days. Ultimately, it was found on 26.10.2006 that the suit had already been disposed of vide judgment and decree was passed on 10.4.2006.
4. The above mentioned explanation was given in the application under Order 9 Rule 13 CPC which was taken as the part of the application for condonation of delay.
5. Applicant has referred to the judgment of Hon'ble High Court of Delhi in case of Bank of India Vs. M/s Mehta Brothers and Ors AIR 1991 Delhi 194 in which Hon'ble High Court has held as under:-
" That once the default in appearance was committed, it continues on all subsequent dates as there was no entry in the diary of the lawyer and every thing 4 was forgotten about the case and the defendant remained under the belief that its case was being conducted all this time by its lawyer is sufficient explanation. "
6. The applicant has further referred to the judgment in case of Food Corporation of India Vs. Smt. Arvinder Kaur & anr. Reported as CXXIX(2001-3) The Punjab Law Reporter 542 where the case was dismissed in default due to the strike of local lawyers, so it was ordered to be restored.
7. The applicant has also referred to the judgment in case of Ram Dass & anr. Vs. Shisha Singh & anr. reported as CXXIX(2001-3) The Punjab Law Report 544 with regard to the maintainability of application under Order 9 Rule 13 CPC and further to the judgment in case of Sagayam Engineering Works Vs. M/s Srivatsa Tube Corporation reported as AIR 1989 Madras 327 in which the delay occurred as the party was not communicated by his counsel.
8. The applicant has further referred to the judgment in case of Shyam Lal Dhar Vs. M/s Ply Board Industries reported as AIR 1981 Jammu & Kashmir 95 wherein it was held that 5 where negligence of the counsel for the parties was condoned.
9. The applicant has further referred to the judgment in case of Ram Nath Sao Vs. Gobardhan Sao reported as AIR 2002 SC 1201 in which it has been held that sufficient cause should receive liberal construction so as to advance substantial justice.
10. And lastly applicant has referred to the case of Lachi Tewari & anr Vs. Director of Land Records & ors AIR 1984 SC 41 that where petitioner had taken extra care to engage lawyer, nothing more could be expected from him .
11. On the contrary, the reply was filed by the decree holder in which objection has been taken that the application is hopelessly barred by time and there is no explanation given in the application. The Decree Holder has further objected that it is settled law that the negligence of counsel can be taken only when it is supported by affidavit along with complaint filed against him in the Bar council. The Decree Holder has objected the application as well as application for condonation of delay that the defendant was proceeded exparte on 7.2.2006 and subsequently the exparte decree 6 was passed and it is just mentioned that recently on 26.10.2006 defendant came to know about the passing of exparte order dated 7.2.2006 and exparte decree dated 10.4.2006. The defendant has not put any proof of the same. It is further objected by the Decree Holder that submissions made by the applicant is fabricated and against the record of the court. Decree Holder has further taken the plea that the lawyers strike has been declared illegal by the Hon'ble High Court of Delhi. Decree Holder has filed a detailed reply opposing the condonation application. It is further mentioned in the application that even after proceeding exparte, the case was fixed for hearing on 10.1.2006,7.2.2006, 15.2.2006, 27.3.2006, 5.4.2006 and 10.4.2006 when the decree was passed. The Decree Holder has further submitted that the defendant is guilty of gross negligence, latches on his part and is not entitled for the relief.
12. The Decree Holder has referred to the judgment in case of Mohini Mehra Vs. M/s Mallbu Estate Pvt. Ltd. Reported as 2006 IV AD(Delhi) 570 in which the Hon'ble High Court has held that the court would not come to the aid of litigant who does not approach court with clean hands. 7
13. The Decree Holder has also referred to the judgment in case of Gargya Research Instruments Vs. State Bank of India reported as 2006 IV AD(Delhi) 658 in which the delay of two months was not condoned by the Hon'ble High Court holding that no sufficient and co-gent reasons for none appearance has been shown.
14. The Decree Holder has also referred to the judgment in case of New Bank of India Vs. M/s Marvels ( India) & ors reported as 2001 VI AD(Delhi) 356 in which it has been held that the mistake of the advocate or the failure of the lawyer to appear not necessarily sufficient cause.
15. The Decree Holder has also referred to the judgment in case of Kuldip Singh Vs. Oriental Bank of Commerce reported as 88(2000) DLT 377 in which the Hon'ble High Court held that strike is no ground to justify for recalling the order.
16. The Decree Holder has also referred to the judgment in case of Dharshan Lal Dhuper Vs. Motia Rani & ors reported as 110(2004) DLT 516, the Hon'ble High Court held that the action on the part of the respondents in putting entire blame for their negligence on their counsel does not give 8 sufficient cause.
17. The Decree Holder has also referred to the judgment in case of Overseas Employment Vs. A.S.Bakshi reported as 1986(1) All India Rent Control Journal 131, wherein it was held by the Hon'ble High Court that it can not be said that when summons were duly served upon the appellant and there is no explanation or reason for absence on that date fixed except that counsel was negligent , it can not be said that he was prevented by sufficient cause.
18. The Decree Holder has also referred to the judgment in case of Mala Dang Vs. R.K. Cables & ors reported as 33(1987) DLT 11 wherein it was held by the Hon'ble High Court that no ground is made out for setting aside exparte decree pleading misguidance by advocate.
19. The Decree Holder has also referred to the judgment in case of Anil Sharma Vs. Wiezmani Consultants & anr. Reported as 115 (2004) DLT 154 , wherein it was held by the Hon'ble High Court that application is vague in particulars and appears to be a measure to gain time, no reasons are given why the defendant did not contact his erstwhile and first counsel and further more no diligence is averred or proved in 9 pursing the case.
20. In the present case the applicant has emphasised on the following causes :-
i) that the inquiries were made from the counsel and the counsel informed that the strike is going on and nothing would happen.
ii) Secondly counsel informed that there was no change in the circumstance and if and when strike was over, the work commences, he would himself appraise them.
iii) That defendant got extremely busy with its
business and with some on going finance
crises/disputes uptill September, 2006.
iv) that the counsel told that because of non receipt of instructions, he stopped keeping watch and appearing in the matter.
v) And ultimately counsel informed on 26.9.2006 about the judgment passed.
21. The explanation/cause given by the applicant that the counsel informed that nothing was happening in the matter is apparently not available. Moreover, neither this was 10 actual position nor there was any such procedure. The applicant has not come with any material or affidavit of the lawyer or any supporting material from which any inference can be drawn that the lawyer actually said so. Moreover, it is pertinent to mention here that even after proceeding exparte on 7.2.2006, case was fixed for number of dates and the decree was passed after 4 dates of hearing.
22. Similarly the explanation that the defendant contacted the lawyer and he informed that there was no change in circumstance and if and when the strike was over and the work commence he would himself apprise them is without any basis and the material on the record. Moreover, as per the judgment in case of New Bank of India Vs. M/s Marvels ( India) reported as 2001 VI AD(Delhi) 536, this explanation is not probable.
23. The next explanation given that the defendant was busy in the business and on going financial crises can not be said to be any ground or explanation. If such explanation is to be accepted it would affect the entire judicial system and the judicial system would be taken on least priority as compared to the business of the parties. Such explanation is 11 neither permissible nor acceptable in the judicial process and it can not be taken as explanation not to bother and act in the careless manner with regard to the judicial proceedings.
24. Last explanation that the lawyer informed that because of non receiving instructions, he stopped keeping watch and appearing in the matter, itself shows that the defendant was not taking due care and was completely negligent and careless and was putting the judicial process on the receiving end.
25. As discussed above in detail explanations given by the applicant explaining the delay is neither permissible nor acceptable. The judgments referred by the applicant in case of Bank of India Vs. M/s Mehta Brothers and Ors reported AIR 1991 Delhi 194, Food Corporation of India Vs. Smt. Arvinder Kaur & anr. Reported as CXXIX(2001-3) The Punjab Law Reporter 542 ,Ram Dass & anr. Vs. Shisha Singh & anr. reported as CXXIX(2001-3) The Punjab Law Report 544, Sagayam Engineering Works Vs. M/s Srivatsa Tube Corporation reported as AIR 1989 Madras 327 Shyam Lal Dhar Vs. M/s Ply Board Industries reported as AIR 1981 Jammu & Kashmir 95, Ram Nath Sao Vs. Gobardhan Sao reported as 12 AIR 2002 SC 1201, and Lachi Tewari & anr Vs. Director of Land Records & ors AIR 1984 SC 41, does not render any help in the facts and circumstance of the case.
26. On the contrary the arguments advanced by the counsel for the Decree Holder is duly supported by consistent law laid down by the Hon'ble High Court in cases of Mohini Mehra Vs. M/s Mallbu Estate Pvt. Ltd. Reported as 2006 IV AD(Delhi) 570, Gargya Research Instruments Vs. State Bank of India reported as 2006 IV AD(Delhi) 658, New Bank of India Vs. M/s Marvels ( India) & ors reported as 2001 VI AD(Delhi) 356, Kuldip Singh Vs. Oriental Bank of Commerce reported as 88(2000) DLT 377, Dharshan Lal Dhuper Vs. Motia Rani & ors reported as 110(2004) DLT 516, Overseas Employment Vs. A.S.Bakshi reported as 1986(1) All India Rent Control Journal 131, Mala Dang Vs. R.K. Cables & ors reported as 33(1987) DLT 11, and Anil Sharma Vs. Wiezmani Consultants & anr. Reported as 115 (2004) DLT 154.
27. Keeping in view the factual position mentioned above and the causes given by the applicant for condonation of delay, can not be said to be sufficient cause. The application filed by the applicant under Section 5 of 13 Limitation Act for condonation of delay is dismissed along with application under Order 9 Rule 13 CPC as barred by limitation.
Announced in open court. (P.S.TEJI) Today: 24.3.2007 Addl. District Judge :Delhi.