Madhusudhan Industries Ltd. vs Shri Rajesh Arora & Anr.
1999 Latest Caselaw 1025 Del

ORDER

Vikramajit Sen, J.

1. This suit is filed for recovery of Rs. 19,37,589/- under Order xxxvII of the Code of Civil Procedure. Summons in Form No. 4 of Appendix B, directing the Defendants to enter appearance within ten days from the date of service were admittedly served on the Defendants on 25.10.1996 but appearance was entered on their behalf only on 21.12.1996. Simultaneously I.A. 178/97 has been filed by them under Section 5 of the Limitation Act read with Order xxxvII, Rule 3 (7) of the C.P.C.

2. The case made out for condoning the delay in entering appearance is that Defendant No. 1 was admitted in Hospital between 26.10.1996 and 28.10.1996, and was advised complete bed rest as he was suffering from various other ailments. Medical Reports and Certificate have been filed. It has been further stated that Defendant No. 2, being a housewife, attended to only household chores and "is not of any assistance to Defendant No. 1 for field works". Defendant No. 1 had contacted his counsel on 29.10.1996 but could not keep his appointment for 1.11.1996 due to the dislocation of his knee on 30.10.1996. In paragraph 4 of the application it has been stated that the necessary papers regarding the matter were sent by the Defendant No. 1 to his counsel through his domestic help. Interim present counsel handed over to the said domestic help a vakalatnama which was to be signed by the Defendants". This vakalatnama was thereafter sent. No explanation has been proffered for not taking requisite action in the period presumably commencing from 1.11.1996 upto 18.12.1996 on which date the Defendant No.1 is stated to have become well enough to move about. It has been further stated in the application that he contacted his counsel on the evening of 20.12.1996. On these facts it is pleaded that the delay of the Defendants in not putting appearance within ten days of service, i.e. by 5.11.1996, was totally unintentional and for bona fide reasons.

3. From a perusal of the Court Records, it transpires that the Defendants' Advocate had inspected them on 19.11.1996 and 12.12.1996. No explanation has been given for the non-disclosure of these facts which are germane to the issues now being canvassed in Court. Failure to plead and explain these relevant facts cannot be ignored, and it is not a satisfactory answer that these facts have been stated in the Rejoinder to the application that is, after an objection to this effect had been taken by the Plaintiff. The Hospitalisation of the Defendant No.1 between 26th to 28th October, 1996, and the subsequent alleged dislocation of the knee and other ailments cannot be considered as an obstacle or deterrence in appearance being entered on behalf of defendants. This action did not require or entail the presence of either of the Defendants. The averments in the application itself show that Defendant No. 1 had contacted his Advocate within time and had even furnished a vakalatnama. No justifiable reason has been given for the non-compliance of simple formality of entering appearance. Had these reasons been given for the condensation of delay in filing an application seeking leave to defend, it would perhaps have carried some weight, since the presence and briefing of the Defendants would then have been called for. Learned counsel for the Defendants could not controvert that the personal attendance of the Defendants was not required at the stage of entering appearance, as envisaged in Order xxxvII of the C.P.C.

4. A vakalatnama dated 21.12.1996 executed by Defendant No. 2 is on record. It is signed in English and the attending circumstances do not show that she was a pardanashin lady as is sought to be made out now. Annexures P-1 to the plaint which is the Agreement between the parties hereto, has also been signed by Defendant No. 2 which would also belie the stand that she was a pardanashin lady. A recital in this Agreement is to the effect that both the Defendants are carrying on business of ceramic tiles and sanitary wares at property No. 5279, Shradanand Marg, Delhi-110006 in the name of their proprietary concern M/s. Delhi Marble House and M/s. Ceramic House respectively. Defendant No. 2 is evidently an educated business woman and there was no obstacle in her ensuring that the requirements postulated in Order xxxvII were complied with within the stipulated period. Even if the allegation that she was a pardanashin lady is taken to be correct, this in itself would not be sufficient for condoning the delay for the reason that, on having obtained authority to represent the Defendants, it was left only to their counsel to enter appearance. When a special procedure has been conceived of, it should not be allowed to be circumvented and ignored on palpably flippant grounds. For these reasons the application for condoning the delay is rejected.

Suit No. 2343/96

5. Sub-rule (3) of Rule 2 of Order xxxvII states that in default of the Defendant entering appearance, the allegations in the plaint shall be deemed to be admitted and the Plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specific if any. The application for the condensation of delay in entering appearance has been rejected and the plaint must be accepted to be correct. It is averred in the plaint that Annexure P-1 was executed on 30.9.1994 between the parties, wherein the liability of the Defendants was unequivocally admitted, Defendant No.1 had admitted and acknowledged liability to a sum of Rs.1,42,694/- and Defendant No. 2 had admitted and acknowledged the liability to a sum of Rs. 8,23,477/-. In terms of pars 5 of this Agreement Defendant No. 1 had undertaken to pay the then outstanding sum of Rs. 9,66,171/- in equal monthly installments of Rs.

50,000/- each. Defendant No. 2 had guaranteed payment of the entire amount then outstanding. Pursuant to this Agreement, two payments of Rs. 10,000/- each has been paid. It has been averred that six cheques, as detailed in Annexure P-2 had been given to the Plaintiff by Defendant No. 1, but these were dishonored when presented for encashment. I see no reason for disbelieving the averments in the plaint, since these are supported by documentary proof.

6. In these circumstances, I hold that the Plaintiff has sufficiently proved that the Defendants are jointly and severally liable to pay a sum of Rs. 9,46,171/- towards principal amount and Rs. 9,91,418/- towards interest accrued thereon till the filing of the suit. I accordingly pass a decree in the sum of Rs. 19,37,589/- together with pendante lite and future interest, however at the rate of 18 per cent per annum, together with costs of the suit.

7. Decree sheet be drawn up accordingly.