$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2450/2009
Date of decision : 3.12.2012
IN THE MATTER OF :
RAVINDER PAL SINGH BAWA ..... Plaintiff
Through Mr.R.K. Dhawan and Ms. Shweta
Joshi, Advocate
versus
MEENAKSHI MARWAH ..... Defendant
Through Mr.Rajiv Duggal, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
I.A.No.8917/2012 (by the defendant u/Section 151 CPC)
1.
This application has been filed by the defendant praying inter alia for grant of permission to inspect the court file and take photographs of the signatures on the Agreement dated 23.3.2009 and on the original cheques, which are the subject matter of the present suit.
2. Counsel for the defendant submits that the Sale Agreement dated 23.3.2009 relied upon by the plaintiff, is a forged document and that it does not bear the signatures of the defendant and to establish the said fact before the learned Metropolitan Magistrate, in whose court a complaint filed by the plaintiff under Section 138 of CS(OS) 2450/2009 Page 1 of 8 the Negotiable Instruments Act is pending, the defendant be permitted to take photographs of the signatures on the Agreement dated 23.3.2009 and also of the signatures on the original cheques that form the basis of the present summary suit. He goes on to state that even if the defendant is not permitted to photograph the original cheques, she be permitted to take photographs of the original Sale Agreement dated 23.3.2009.
3. If it is the case of the defendant that she is required to adduce evidence before the learned Metropolitan Magistrate in a complaint case filed by the plaintiff against her, under Section 138 of the N.I. Act, then it is for her to take necessary steps to summon the relevant records in accordance with law. The prayer made herein for permission to take photographs of the original documents, upon inspection of the court file is declined.
4. The application is dismissed as being devoid of merits. IA No. 6380/2010 (by the defendant u/O 37 R.3)
1. Counsel for the plaintiff states that the leave to defend application filed by the defendant is barred by limitation for the reason that service of the summons for judgment was effected on the defendant on 29th March, 2010 and on 30th March, 2010 at the addresses that were given by her in the memo of appearance as well as on the previous certified copies. The service certificates issued by the courier agency are stated to be on record. He submits that if it is assumed that the defendant was served with the CS(OS) 2450/2009 Page 2 of 8 summons for judgment on 30th March, 2010, then she ought to have filed an application for leave to defend within ten days reckoned from the said date, i.e., on or before 10 th April, 2010. However, the present application was not filed by her within the prescribed period, but on 10th May, 2010.
2. Learned counsel for the plaintiff further submits that process was also sent through process server of this court and was received by an official of the defendant and the receipt is dated as 23rd April, 2010. Thus, if the date of 30th March, 2010 is ignored and the date of service is taken as 23.4.2010, then the leave to defend application could have been filed by the defendant within ten days reckoned therefrom, i.e., on or before 3rd May, 2010. However, the defendant has filed the present leave to defend application on 10th May, 2010, and that too without supporting the same with an application for condonation of delay and thus, the present application is liable to be dismissed as being barred by limitation.
3. Learned counsel for the defendant states that the previous counsel for the defendant was served with the summons of judgment on 26th April, 2010 and therefore, the said date ought to be reckoned as the correct date for calculating the period of ten days for filing the leave to defend application. He further submits that if the suit is adjourned today, he shall take necessary steps to file an application for seeking condonation of delay.
4. It is pertinent to note that the present leave to defend CS(OS) 2450/2009 Page 3 of 8 application was filed by the defendant on 10th May, 2010 and a reply thereto was filed by the plaintiff on 6th July, 2010. In para-1 of the preliminary objections, the plaintiff has taken an objection as to the limitation aspect and he has stated therein that the leave to defend application is not accompanied by an application for condonation of delay and therefore, the same is liable to be rejected. It is therefore stated on behalf of the plaintiff that it is not as if the defendant has been confronted with the limitation issue only today, rather she was well aware of the said objection, taken by the plaintiff for the past over two years.
5. Learned counsel further states that the defendant has not chosen to rebut any of the submissions made by the plaintiff in his reply as she has failed to file a rejoinder to the reply and therefore, the averments made in the reply should be deemed to be true and correct. Learned counsel for the plaintiff submits that moreover, the right of the defendant to file the rejoinder to the reply was closed on 20th January, 2012 and therefore, it is too late in the day for the counsel for the defendant to seek further time to file an application for condonation of delay.
6. The Court has heard the counsels for the parties. The provisions of Order 37 that deals with summary suits are clear and unequivocal. The defendant is required to file a leave to defend application within the timeline prescribed under Order XXXVII Rule 3(5) of the CPC, which stipulates a period of ten days for filing an CS(OS) 2450/2009 Page 4 of 8 affidavit disclosing the facts that are deemed sufficient to claim leave to defend.
7. A perusal of the record reveals that vide order dated 18 th December, 2009, notice was issued to the defendant in the prescribed manner, returnable before the Joint Registrar on 17th February, 2010. Thereafter, the defendant had filed an application under Order XXXVII Rule 3(1) of the CPC for putting in appearance wherein she had furnished two addresses for effecting service upon her, i.e., an address of a commercial complex at Dr. Mukherjee Nagar, Delhi and the chamber address of her previous counsel, Ms.Kavita Kapil.
8. On 12th March, 2010, notice was issued on the application for summons of judgment, filed by the plaintiff and registered as IA No. 3084/2010.
9. A perusal of file reveals that the clerk of the previous counsel for the defendant was duly served with the summons of the judgment through the process server on 26th April, 2010 and much prior thereto, the defendant herself was served with the summons on 30th March, 2010. Additionally, service was effected on the counsel for the defendant through courier on 29th March, 2010. Even if 26.4.2010 is taken as the date on which summons of judgment were served on the defendant, then the leave to defend application ought to have been filed by the defendant on or before 6.5.2010. But admittedly, the present application was filed CS(OS) 2450/2009 Page 5 of 8 thereafter, on 10.5.2010. In such circumstances, it does not lie in the mouth of the defendant to claim that the leave to defend application has been filed within the period prescribed in law.
10. Further, the submission made by learned counsel for the defendant that an opportunity be given to him, to file an application for condonation of delay cannot be acceded to at this stage for the simple reason that the defendant was well aware of the objection taken by the other side as long back as about two years ago and yet no steps were taken by her to file an application for condonation of delay.
11. In the absence of an application for condonation of delay for explaining the delay for in filing the leave to defend application, this court has no option but to dismiss the present application as having been filed beyond the period prescribed in the statute.
12. In view of the above facts and circumstances, the present application is rejected being barred by limitation. CS(OS) No. 2450/2009
1. The plaintiff has filed the present suit under the provisions of Order XXXVII of the CPC for recovery of a sum of `78,18,723.12/-
2. Learned counsel for the plaintiff submits that the plaintiff is a dealer in cotton fabric and the defendant, who is the proprietor of M/s. Bitum Impex, had approached the plaintiff to purchase fabrics. As set out in para-4 of the plaint, various lengths of cloth were supplied by the plaintiff to the defendant on 2.3.2009 and on CS(OS) 2450/2009 Page 6 of 8 9.3.2009, at different rates as mentioned in the invoices mentioned in para-4 of the plaint. On 23rd March, 2009, a Sale Agreement- cum-Payment Receipt was executed between the parties whereunder the defendant had handed over a post dated cheque bearing No.39040 dated 16.5.2009 for `78,18,723.12/- to the plaintiff with an assurance that the same would be honoured on presentation.
3. However, when the aforesaid cheques were presented by the plaintiff on the due dates, they were all dishonored by the defendant's banker with the remarks that there were "insufficient funds" in the account of the defendant. It is submitted that within a month of the cheque being dishonoured, the plaintiff had issued a legal notice to the defendant on 26th October, 2009 and thereafter, he had filed a complaint under Section 138 of the Negotiable Instruments Act which are pending adjudication.
4. Documents in support of the averments made in the plaint have been placed on record, including the original dishonored cheques and the intimation of dishonour by the bankers of the defendant. Learned counsel for the plaintiff further states that till date, the defendant has not made any payment to the plaintiff in lieu of the dishonored cheques.
5. The present suit has been instituted by the plaintiff for recovery of a sum of `78,18,723.12/- from the defendant. In addition, the plaintiff claims interest on the aforesaid amount @24% CS(OS) 2450/2009 Page 7 of 8 per annum from the date of the dishonor of the cheque, till realization, with costs.
6. As noticed above, summons in the suit were issued to the defendant and she had duly entered appearance and filed her memo of appearance, whereafter, summons of judgment were issued. However, after being served with the summons of judgment, the defendant had failed to file the leave to defend application within the timeline prescribed in the CPC. Nor did the defendant take any steps to file an application for seeking condonation of delay in filing a belated leave to defend application. As a result, the said application has been rejected by a separate order passed today.
7. The leave to defend application of the defendant having been dismissed as being barred by limitation, the allegations in the plaint are deemed to be true and correct and admitted by her. In view of the above, the present suit is decreed in favour of the plaintiff for a sum of `78,18,723.12/- with simple interest calculated @10% per annum from the date of institution of the present suit, till realization. The plaintiff shall also be entitled to costs in the suit, along with the counsel's fee quantified at `30,000/-.
8. Decree sheet be prepared accordingly.
HIMA KOHLI, J DECEMBER 03, 2012 rs/mk/sk CS(OS) 2450/2009 Page 8 of 8