D.C.M. Financial Services ... vs Khaitan Hostombe Spinels Ltd.
1998 Latest Caselaw 789 Del

ORDER

Dr. M.K. Sharma, J.

1. The present suit was instituted by the plaintiff under the provisions of Order xxxvII of the Code of Civil Procedure praying for a decree against the defendant for a sum of Rs.93,81,675/- alongwith interest pendentelite and future. On 8.2.1996 the suit was registered. Summons and notices were ordered to be issued to the defendant by registered post as also through ordinary process. Subsequently, however, the plaintiff filed an interim application registered as I.A.No.1834/1996 for adding the registered office of the respondent at Kanpur. The aforesaid application filed by the plaintiff was allowed, in pursuance of which summons and notices were directed to be issued to the defendant at the said address also. On 12.4.1996 it was directed that the service report on the defendant be awaited and in the mean time fresh summons/notices were directed to be issued through ordinary process as also through registered post. In pursuance to the same the summons/notices were issued both by ordinary process as well as by registered A.D.Post. Subsequently, however, a dispute arose as to whether the summons and notices were duly served on the defendant or not. On 30.9.1996 this court held that there was no proper service on the defendant in respect of the suit and accordingly the plaintiff was directed to take fresh steps for service on the defendant. Subsequently, however, an application was filed by the petitioner which was registered as I.A. No.11206/1996 praying for review of the order dated 30.9.1996. The defendant who had in the meantime entered appearance opposed the said application and accordingly, the counsel appearing for the parties were heard.

2. By order 5.8.1997 this court held that the order passed on 30.9.1996 was required to be reviewed inasmuch as the defendant was duly served prior to 30.9.1996 in accordance with law. Accordingly order dated 30.9.1996 was reviewed and that part of the order was recalled. The aforesaid order was challenged before the Division Bench which was registered as F.A.O.(0S) 205/1997. On 12.1.1998 the Division Bench perused the Despatched Register and on perusal thereof by order of the same date held that in the proceedings under order xxxvII of the Code of Civil Procedure service was deemed to have been effected on the defendant and accordingly, the appeal filed by the defendant was dismissed. The Division Bench desired that the application for condensation of delay filed by the defendant be considered on merits. In terms of the aforesaid order the application filed by the defendant under Section 5 of the Limitation Act and registered as I.A.No. 11951/1996 was put up for consideration before me on which I have heard the learned counsel appearing for the plaintiff as also the defendants.

3. I have perused the contents of the aforesaid application filed by the defendant praying for condensation of delay in entering appearance by the defendants. According to the provisions of Order xxxvII CPC the plaintiff in a suit filed by him under the provisions of Order xxxvII has got to serve on the defendant a copy of the plaint and annexures thereto alongwith the summons issued in the statutory form as prescribed under Rule 2 thereof and upon such service the defendant may within 10 days thereof enter appearance either in person or by a pleader and in either case he is to file in court an address for service upon him. Sub-Rule 2 of Rule 3 provides that all summons/notices and all judicial process required to be served on the defendant would be deemed to have been duly served on him if they are left at the address given by him for such service.

4. In the application filed by the defendant which is placed for my consideration now, the defendant has stated that they entered appearance in the matter on 10.9.1996 although they were not served in accordance with law. It is stated that the defendant immediately appeared in the suit on coming to know of the pendency of the same although it was not served with the summons. It is further stated in the application that the defendant had not been served with the summons in accordance with law, but since the service report indicated service of the summons upon the defendant company though incorrectly, the present application under Section 5 has been filed by the defendant praying for condensation of delay by way of abundant caution and without prejudice to the aforesaid statement of the defendant.

5. A reply has been filed by the plaintiff refuting the allegations made in the application and has sought for dismissal of the aforesaid application and thereafter for passing of a decree in the suit in terms of the provisions of Order xxxvII CPC.

6. The Division Bench of this court by order dated 12.1.1998 held that the defendant was deemed to have been served through the registered post. Admittedly, the defendant has not made its appearance within 10 days of the aforesaid service. Thus the issue that arises for my consideration is whether the delay in entering appearance by the defendant in the suit could be condoned in terms of Section 5 of the Limitation Act.

7. The contents of the application filed by the defendant under Section 5 of the Limitation Act would abundantly and clearly prove and establish that instead of explaining the cause for the delay not to speak of proving sufficient cause for condensation of delay the defendant sought to assert that its appearance was within time of 10 days as provided for under rule 3 of Order xxxvII as the summons were not served on the defendant. The aforesaid assertion of the plaintiff was negatived both by the order dated 5.8.1997 passed by this court and order dated 12.1.1998 passed by a Division Bench of this Court. The aforesaid assertion of the defendant that the summons were not served on the defendant and that appearance had been made within 10 days of coming to know about the pendency of the case, was found to be incorrect and contradicted by the documents available on record. The defendant has failed to plead any cause much less sufficient cause for the delay in making appearance in the court in terms of Rule 3 of Order xxxvII CPC. No explanation is forthcoming from the defendant about the reasons and grounds for the delay in making appearance. The test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention as nothing shall be deemed to be done bonafide or in good faith which is not done with due care and attention. In order to find out and adjudge whether there is sufficient cause or not to condone the delay there should have been pleadings in the application giving reasons and grounds and making out a case of sufficient cause for the delay in making appearance in the court. In the absence of any such pleading this court is not in a position to hold that the defendant was prevented by sufficient cause in making appearance in the case in terms of rule 3 of Order xxxvII CPC. Thus the application filed by the defendant under Section 5 of the Limitation Act and registered as I.A. 11951/1996 stands rejected.

SUIT NO.362/1996:

8. In views of the rejection of the aforesaid application I have no other option but to hold that since the defendant did not enter appearance in the suit within the statutory period of limitation and the delay in appearance of the defendant in the present suit has not been condoned the plaintiff is entitled to judgment in this summary suit forthwith. The suit instituted by the plaintiff for recovery of the amount is based upon a liquidated amount due to the plaintiff from the defendant upon a written contract and upon cheques. The statements made in the plaint go unchallenged and they are deemed to be admitted. Thus the suit squarely falls within the ambit of Order 37 and accordingly, the suit stands decreed for an amount of Rs.93,81,675/- with costs. In addition the plaintiff shall be entitled to interest @ 15% per annum from the date of filing of the suit till realisation.