Delhi High Court
M/S. S.A.E. (India) Ltd. vs D.E.S.U. (Delhi Vidyut Board) on 2 July, 2000
Author: M Mudgal
Bench: M Mudgal
ORDER
Mukul Mudgal, J.
1. The first application (IA.11401/99) is filed on behalf of the respond-
ent under Order IX, Rule 13 CPC, seeking the setting aside of the ex-parte
decree dated 15.4.1999. The second application (IA.11402/99) is also filed
on behalf of the respondent under Section 5 of the Limitation Act, seeking
for condensation of delay in filing the IA.11401/99 filed under Order IX,
Rule 13 CPC.
2. The cause given in the first application is that the erstwhile counsel engaged on behalf of the respondent/applicant was not well and has deputed his associate, who made a wrong notation of date of 19.8.99 and accordingly on the date when the matter was actually listed on 15.4.1999 none could appear and the decree was passed ex-parte. Besides it is also stated that the applicant/the respondent herein came to know of the ex-parte order dated 15th April, 1999 only when in October, 1999 upon a listing of the execution petition, the applicant/respondent herein came to know of the passing of the ex-parte decree in this Court. In support of the first application (IA.11401/99), an application, i.e., IA.11402/99 for condensation of delay giving similar grounds has also been filed.
3. The learned counsel for the petitioner has submitted that the very attitude of the respondent in this case has been lackadaisical and displays indifference and negligence and was the subject-matter of an adverse order of by the Division Bench on 4th February, 1994 when an ex-parte decree dated 31st July, 1989 was set aside.
4. On 4.2.1994, the Division Bench of this Court while setting aside the ex-parte dated 31.7.1989 made the following observations against the respondent, the applicant in thi application:-
"In the above circumstances we are of the view that the Corporation should be given an opportunity to participate in the proceedings before a decree is made. However, the Corporation also should be diligent and its officers should take a perennial interest in its litigation. We direct the Corporation to deposit another sum of Rs. six lacs before 11th March, 1994 with the Registrar of this Court. The amount of Rs. six lacs will be kept
in a fixed deposit in a Bank by the registry and the same will be subject to the final directions in the suit."
5. In spite of the above admonition of the Division Bench, the conduct of the respondent displays continued indifference. The learned counsel for the petitioner contended that the conduct of the respondent dos not inspire any confidence and the present applications filed by the respondent do not merit consideration in view of the past conduct of the respondent and the the fact that the matter is pending in an arbitration proceeding in this Court for more than 20 years.
6. Upon considering the overall circumstances of the case and the fact that the default has arisen on account of what is said to be counsel's mistake in noting the date, I am of the view that these applications should be allowed. I am also conscious of the fact that the public revenues are involved in this petition. However, certain other orders are required to be passed in this case to balance the end of justice and equity. The arbitration award is of the year 1980 and the matter is pending for the last 20 years in this Court and the major portion of the delay is clearly due to the conduct of the respondent/applicant in this application. It is, therefore, a fit case whether the petitioner should be entitled to withdraw the sum of Rs.16,00,000/- already deposited by the respondent/applicant in this Court. The Award in favour of the petitioner had granted it Rs. 8 lacs and considering the interest which may be payable for the twenty years period on the awarded amount this amount of Rs.16 lacs would sufficiently meet the ends of justice. The aforesaid amount be withdrawn from the fixed deposit invested in this Court. The balance amount will continue to be invested in
the Fixed Deposit Account in this Court. The withdrawal of the aforesaid amount will be subject to the result of the proceedings in this Court. Accordingly, both the applications are allowed subject to the withdrawal of the aforesaid amount by the petitioner. Delay in filing the IA.11401/99 is condoned. The Objections (IA. 2903/80) are restored to their original number.
7. Applications are accordingly disposed of.
IA. 11702/99
8. In view of the dismissal of the execution petition, this application has become infructuous and the same is accordingly dismissed as infructuous.
IA.No. 2903/80 in S.No. 318-A/80
9. List this matter on 23.10.2000 as a Short Cause Matter.
