Delhi High Court
Shri Rane Parkash And Ors. vs Central Bank Of India on 22 May, 2003
Equivalent citations: 2003VAD(DELHI)222, AIR2003DELHI415, 105(2003)DLT373, 2003(71)DRJ703, AIR 2003 DELHI 415, (2003) 3 BANKCLR 92, (2003) 4 CIVLJ 723, (2003) 2 BANKJ 558, (2003) 105 DLT 373, (2003) 8 INDLD 270
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT R.C. Jain, J.
1. Defendant-Central Bank of India has filed this application under Order xxxvII Rule 3 (5) and (7) read with Section 151 CPC praying for condensation of delay in filing the leave to defend application and for grant of leave to defend a summary suit filed by the above named plaintiff.
2. The relevant facts leading to the application are that the above named plaintiffs have filed a suit for recovery of arrears of balance rent amounting to Rs. 34,98,130 in respect of the rented premises Japan Hall consisting of a total area of 4725 sq.ft. at the rate of Rs. 50 per sq. feet. In terms of the registered sale deed dated 30.12.98. The suit was filed and registered as a summary suit on 9.1.02 under Order XXVII CPC and summons for appearance in the prescribed form were issued to the defendant returnable for 7.5.02. The said summons were served on the defendant on 5.2.02 and the defendant entered appearance on 15.2.02 thereby giving two addresses viz address No. (1) R. M. Gupta & company, Advocats, 121 Lawyers Chamber, Delhi High Court, New Delhi as the address of the defendant for the service of notices, processes etc. and (2) Central Bank of India through General Manager, 72, Janpath, New Delhi for the service of summons on the defendant. Plaintiff took out summons for judgment which were served on the defendant bank on 18.5.02 as well as in the office of Mr. R. M. Gupta, Advocate, on 17.5.02. However no application for leave to defend the suit was moved within the stipulated period of 10 days either from 17.5.02 or 18.5.02. In the meantime one of the plaintiff i.e. Smt. Shan Prakash-plaintiff No.3 died on 20.5.2002 and so an application under Order 22 Rule 3 read with Section 151 CPC was moved on behalf of the plaintiff for substitution of her legal heirs i.e. plaintiff Nos. 1 and 2. and one more person. A notice of the said application was served on the defendant but no reply was filed and the application was allowed vide order dated 24.1.03 and heirs of plaintiff No.3 were ordered to be brought on record and an amended memo of parties filed.
3. The present application for condensation of delay in filing the leave to defend application and for grant of leave to defend has been made by the defendant on 20.3.2003 only with the averments and allegations that the leave to defend application could not be filed because there was no substantial/effective proceedings in the suit between the period of May to August on account of death of plaintiff No.3 and the proceedings which continued related only to the substitution of the LRs of plaintiff No.3 who died on 20.5.2002 i.e. three days after the receipt of the notice in the office of the counsel for the defendant. The defendant and his counsel remained under the impression that the summons for judgment, if any, shall be issued by the Court after the disposal of the said application. It is also alleged that there has been no proper service of the summons for judgment on the defendant and in any case the form in which the notice/summons for judgment have been served on the defendant/counsel does not clearly mentioned the fact that the same were summons for judgment and that the defendant was required to file an application for leave to defend the suit within ten days. Along with the application affidavit of Shri H. K. Verma, Assistant General Manager and constituted attorney of the bank has been filed raising certain defense pleas as to the merit of the plaintiff's claim and the said claims being barred by time.
4. Plaintiff did not choose to file reply to the application but vehemently opposed the prayer of the defendant for condensation of delay in filing the leave to defend application.
5. I have heard Mr. N.N. Aggarwal, learned counsel representing the plaintiff and Mr. Vijay Gupta, learned counsel representing the defendant and have given my thoughtful consideration to their respective submissions. In the case in hand it is admitted and even otherwise proved on record that after the defendant had entered its appearance on 15.2.02, giving out two addresses i.e. address of the defendant and that of its counsel, the plaintiff took out the summons for judgment and served the same not only on the counsel for the defendant but also on the defendant on 18.5.02 strictly in compliance with the provisions of Sub Rule 2 of Rule 3 of Order xxxvII. Sub Rule 5 of Rule 3 of this order enjoins upon the defendant to make an application by filing an affidavit seeking leave to defend the suit within ten days from the service of summons for judgment. Admittedly the defendant has not filed any leave to defend application or affidavit disclosing such facts as may be deemed sufficient to entitle him to defend the suit. According to the defendant this was for two reasons firstly the defendant and his counsel remained under the impression that after the death of plaintiff No.3 on 20.5.2002 the suit could not proceeded unless the legal heirs of the said decease-plaintiff No.3 were brought on record and there were no effective proceedings in the suit. Secondly that the format in which the notice/summons were received by the defendant are defective being not inconfirmity with the form No.4 and 4A of Appendix B of the Code of Civil Procedure as a result of which they were misguided and did not filed leave to defend application within the stipulated period.
6 Learned counsel for the plaintiff has vehemently urged that both these grounds are wholly untenable and are sham pleas to cover up the delay of about nine months in filing the leave to defend application. So far as the first ground that the leave to defend application could not be filed by the defendant under the assumption that no effective/substantive proceedings could be taken owning to the death of plaintiff No.3 is liable to be rejected because there was no basis for the defendant to make such an assumption, the provisions of Order xxxvII CPC being mandatory and the defendant a bank and represented by a counsel, by any stretch of imagination it could have assumed that no effective proceedings could take place owing to the death of plaintiff No.3. More so when the death of plaintiff No.3 though occurred on 20.5.2002 was not notified to the defendant untill August or September 2002 when the substitution application was filed on behalf of the plaintiff. The defendant were, therefore, duty bound to file an leave to defend application if they wanted to file one within ten days of the service of summons e.g. latest by 28.5.02.
7. Mr. Vijay Gupta, learned counsel appearing for the bank has then emphatically urged that summons for appearance and judgment served on the defendant in the case in hand are not in the format 4 and 4A of the Appendix B, To examine this submission it is necessary to reproduce the format of summons for appearance and judgment as appearing in form 4 and 4A of Appendix B CPC and the formats in which the summons served on the defendant in the case in hand.
The forms 4 and 4A of Appendix (B) have the following contents.
No.4 SUMMONS IN A SUMMARY SUIT (O.xxxvII, R.2) (Title) To .................................. {Name, description and place of residence} " WHEREAS ............... has instituted a suit against you under Order xxxvII, of the Code of Civil Procedure, 1908, for Rs. .................... and interest, you are hereby summoned to make an application within 30 days from the service hereof, for leave to defend the suit in default where of the plaintiff will be entitled at any time after the expiration of such 30 days to obtain a decree for any sum not exceeding the sum of Rs. ................ and the cost of the suit together with such interest, if any, as the Court may order.
Leave to defend may be obtained on an application to the Court supported by affidavit disclosing facts as may be sufficient to satisfy the Court that you are entitled to defend the suit.
Given under may hand and seal of the Court, this ............ day of 19........./20.........
Given under my hand and seal of this Court, this ........... day of ............ 19........./20.............
Notice.--- Take notice that in default of your filing an address of service along with your application for leave to defend, the said application will be liable to be rejected."
No.4A SUMMONS FOR JUDGMENT IN A SUMMARY SUIT (O. xxxvII, R. 3) (Title) In the ................. Court, at .............. Suit No. ................... of 19....../20..........
XYZ.................................................................................................Plaintiff Versus ABC.................................................................................................defendant.
Upon reading the affidavit of the plaintiff the Court makes the following order, namely:-
Let all parties concerned attend the Court or Judge, as the case may be, on the ................ day of ..............19..../20...., at ................ O' clock in the forenoon on the hearing against the defendant (or if against one or some several, insert names ) for Rs. .................. and for interest and costs.
Dated the .................... day of 19..../20......."
The summons served on the defendants are in the following form:-
IN THE HIGH COURT OF DELHI AT NEW DELHI (Ordinary Original Civil Jurisdiction) (ORDER xxxvII, RULE 3 ) Suit No. 36/02 CA 4393/02 SHRI RANE PARKASH ......... Plaintiff.
Versus
CENTRAL BANK OF INDIA ......... Defendant.
To
Central Bank of India,
The Asstt. General Manager,
72, Janpath
New Delhi-110001
Upon reading the affidavit of the plaintiff the Court makes the following order namely Let all parties concerned attend the Court on the 6th date of September, 2002 at 11.am in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this Suit against the defendant ( or if against one or some or several, insert names ) for Rs. 34,98,130/- and for interest and costs.
Dated the 16th day of May, 2003.
SUPPEINTENDANT (O)
For REGISTRAR
IN THE HIGH COURT OF DELHI AT NEW DELHI
(Ordinary Original Civil Jurisdiction)
Suit No. 36/02
SHRI RANE PARKASH ......... Plaintiff.
Versus
CENTRAL BANK OF INDIA ......... Defendant.
To
Central Bank of India,
Through Asstt. General Manager,
72, Janpath
New Delhi-110001
WHEREAS the plaintiff has instituted a suit against you, under order xxxvII of the Code of Civil Procedure, 1908 for Rs. 34,98,130/- along with interest and cost and Whereas it has been shown to the satisfaction of the Court that it is not possible to serve you in the ordinary way, therefore, this notice is given by advertisement directing you to cause an appearance to be entered for you within ten days from the publication of the notice, in default whereof the plaintiff will be entitled after the expiration of the said period of ten days to obtain a decree for any sum not exceeding the sum of Rs. 34,98,130/- along with interest and cost as the Court may order.
If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defense to the suit on the merits of that it is reasonable that you should be allowed to defend.
Take notice that the case is fixed for hearing on 7-5-02 before J. R. at ____ and in default of your appearance on the day before mentioned the suit will be heard and determined in your absence.
8. A careful perusal of the above summons for judgment served on the defendant would show that they are strictly inconsonance with the formats prescribed in form No.4 and 4 (A) of Appendix (B) except that the summons for appearance does not contain a specific preface "Summons for a summary suit"{ (Order xxxvII r.(2)} in summons for appearance as is mentioned in form No.4. However it clearly contains the word "Publication under Order xxxvII CPC." Therefore, the contention of the learned counsel for the defendant that the defendant entertained same doubt as to whether the suit is a summary suit or otherwise and defendant was required to file a leave to defend application within ten days of the service is fallacious on the face of it. This is against the facts because such an assumption is contrary to the defendant's on conduct as on receipt of these summons, the defendant had entered appearance as required under Rule 2 of Order xxxvII CPC. The format 4(A) of the CPC does not contain any stipulation requiring the defendant to file the leave to defend application in 10 days and, therefore, both the summons served upon the defendant are in complete and substantive compliance of these legal formats/provisions and no fault can be found therein.
9. Mr. Vijay Gupta, learned counsel for the defendant has lastly urged that format 4 (A) as it exits on the statute book is defective in as much as it does not give any indication or requires the defendant to file a leave to defend application within ten days of the service of such summons and that taking note of this situation the Bombay High Court has already amended this format so as to give a clear indication to the defendant that he is required to make a leave to defend application within 10 days of the service of such summons. That may or may not be so unless any such amendment on the lines of Bombay is carried on in Delhi, in the opinion of this Court the plaintiff cannot raise any such plea about the defect in the said summons.
10. It is well settled that a party seeking condensation of delay in filing the leave to defend application has to explain each day's delay and making of certain bald and imaginary grounds cannot be considered sufficient for condensation of delay. In the case in hand the defendant is not an illiterate litigant. It is a nationalised bank having officers including law officers and also represented by eminent counsel who after receipt of summons for appearance in the prescribed format has entered the appearance and were duly served meaning thereby that they were fully aware of the implication of the provisions of Order xxxvII CPC and, therefore, they cannot be allowed to urge that they did not know that the present suit filed by the plaintiff was a summary under the provisions of Order xxxvII CPC. They were duly served with the summons of judgment not only on the one address but on the two addresses furnished by the defendant itself and they must be well aware of the further requirement of law in regard to the filing of leave to defend application within the stipulated period of ten days. Even if there was no such stipulation in the summons for judgment there is no question on the part of the defendant to assume that they were not required to file the leave to defend application within the stipulated period of ten days owning to the death of one of the plaintiffs and that the substitution proceedings were going on. In the opinion of this Court the delay in filing of the leave to defend application was deliberate and a result of callousness and utmost negligence on the part of the defendant's officers which they want to cover up by filing this application. The defendant has failed to make out any case whatsoever for condondation of delay in filing the leave to defend application. The application is accordingly dismissed being devoid of any merits whatsoever.
S. No. 36-02 Once the Court has declined to condone the delay in filing the leave to defend application, as a necessary consequence there is no leave to defend application on record which is required to be considered. Consequently in terms of the provisions of Sub Rule (6) of Rule (3) of order xxxvII CPC, the plaintiff is entitled to a judgment forthwith. Accordingly the plaintiff's suit is hereby decreed for the recovery of Rs. 34,98,130/- with cost and pendente lite and future interest @ 9% p.a. Let a decree sheet be drawn accordingly.