B.R.N. Ship Breakers Pvt. Ltd. vs Supremeenter Prises And Ors.
1994 Latest Caselaw 239 Del

JUDGMENT

Sat Pal, J.

(1) This suit has been filed on behalf of the plaintiff company under Order xxxvii of the Code of Civil Procedure (for short called 'the Code') for recovery of Rs.7,60,000.00 with interest and costs. Vide orders dated 21st July, 1992 summons were directed to be issued to the defendants in the prescribed form. Thereafter the defendants entered appearance on 6th February, 1993.

(2) On 4th August, 1993 the plaintiff filed an application bearing Ia No.7152 of 1993 under Order 37 Rule 3 Sub-rule (4) read with Section 151 of the Code for service of summons for judgment. The said application came up for hearing before the Deputy Registrar on 19th August, 1993 and on that date the Deputy Registrar directed that the summons for judgment be issued to the defendants in the prescribed form for 12th November, 1993. The summons for judgment were served on the defendants on 4th September, 1993 in terms of affidavit of service filed on behalf of the plaintiff. Despite service of summons for judgment on the defendants, no application for leave to defend has been filed on behalf of the defendants. On 24th March, 1994 when arguments were heard in this case, the learned counsel for the defendants submitted that the application for leave to defend on behalf of the defendants could not be filed as the advocate dealing with the case had left M/s. Amar Chand & Mangaldas & Hiralal Shroff & Company, Advocates of the defendants in this case, in January 1994, though the draft for thesaid application was ready and lying in the office of the said advocates.

(3) The learned counsel for the plaintiff, however, submitted that on 18th March, 1994 the case was adjourned at the request of the learned counsel for the defendants for 24th March, 1994 and in case the application for leave to defend was ready with the learned counsel for the defendants, the same could have been filed before 24th March, 1994. He, therefore, contended that the plaintiff was entitled to judgment forthwith.

(4) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. As stated hereinabove the summons for judgment were duly served on the defendants through their counsel on 4th September, 1993 and in terms of Order 37 Rule 3(5), the defendants were required to file an application for leave to defend within ten days from the service of the said summons. Admittedly the application for leave to defend has not been filed on behalf of the defendants till date. Even according to the submissions made by the learned counsel for the defendants, the advocate who was dealing with the case had left their company in January 1994 whereas the applicaiton for leave to defend was required to be filed on or before 14th September, 1993. I, therefore, do not find any merit in the submissions made by the learned counsel for the defendants.

(5) I twill be relevant to refer to Sub-rule 6(a) of Rule 3 of Order xxxvII of the Code which reads as under;- "(6)4,& At the hearing of such summons for judgment,- (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or Xxx Xxx Xxx On a plain reading of this Sub-rule it is clear that in case the defendant fails to file an application for leave to defend, the plaintiff shall be entitled to judgment forthwith. In the present case as stated hereinabove, the defendants have not filed any application for leave to defend, the plaintiff is, therefore, entitled to judgment forthwith. The view I have taken finds support from a judgment of this Court in the case of Akhil Cland & Finance (P) ltd. vs. Ramdutt Sharma and othery, .

(6) In view of the above discussion, the suit for recovery of Rs.7,60,000.00 is decreed with costs in favor of the plaintiff and against the defendants. The plaintiff will also be entitled to pendente lite and future interest at the rate of 12 per cent per annum. Decree may be drawn accordingly.