Delhi High Court
Maruti Udyog Ltd. vs Pentafour Products Ltd. (Auto ... on 30 July, 2001
Equivalent citations: 93 (2001) DLT 660, 2001 (59) DRJ 654
Author: J Kapoor
Bench: J Kapoor
ORDER
J.D. Kapoor, J.
I.A.6788/2001
1. This is an application moved under Order 37 Rule 7 CPC for condensation of delay in entering appearance pursuant to the service of summons of the suit under Order 37 Rule 3(1) CPC.
2. Since this is a suit under Order 37, the procedure laid down in this provision has to be adhered to as it is a self contained code and no other provisions of CPC are applicable. It may be pointed out at the very outset that application has not been signed by the applicant and is resisted by the counsel for he plaintiff that it cannot be taken on record as an application moved by authorised person. It bears only the signature of the counsel. However, attached therewith is an affidavit of one Mr. V.Ramakrishnan, defendant no.2, who is Chairman and Managing Director of defendant no.1.
3. The first objection taken by defendants is that long with summons of suit, neither copy of the plaint nor annexures annexed thereto were received by the defendants. At the same time, it has also taken the plea that summons itself was not served upon the defendants and the non-service of the plaint and annexures is deliberate and with ulterior motive and as such, it was not possible for defendants to ascertain the details of the dispute sought to be raised by the plaintiff.
4. Secondly that the entire establishment of the defendants is situated at Chennai and the Legal Department of the defendant immediately made all efforts to contact a counsel in Delhi through their Chennai counsel for the purpose of entering appearance and defend the matter. The contention of the learned counsel that there is no delay of entering appearance as far as defendant no.1 is concerned is without any basis as defendant no.1 has not stated anywhere in the affidavit as to the date it was served with the summons in the suit. Rather on the one hand plea is taken that summons have not been served at all while on the other hand, it is alleged that annexures of the plaint were not annexed thereto.
5. Perusal of the record shows that defendants were duly served by way of registered summons and the stamp fixed on the registered envelope amounted to Rs. 65/- or so and to say that annexures to the plaint were not annexed is not acceptable. Even otherwise there is a presumption that whenever summons are sent by the court, there are sent along with the annexures.
6. The defendants should have either taken the plea that they have received only the plaint without any annexures annexed thereto or that they have not been served with the summons at all.
7.
It appears that time taken by the defendants in contacting their counsel at Delhi has resulted in delay. Such a cause is not sufficient for condoning it as it is an inexcuseable cause.
8. Sub-rule (3) of Rule 2 places an embargo on the defendant to seek leave unless he enters an appearance within 10 days of the service of summons of the suit. In case of default of entering an 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 specified, if any, up to the date of the decree and such sum for costs as may be determined by the court.
9. Application is liable to be dismissed; firstly, it has not been signed by the defendant; secondly on account of non-disclosure of date of service of summons of the suit and thirdly cause shown by the defendant is neither good nor sufficient. The same is dismissed.
S.No.820/2001
10. In the result, suit is decreed for a sum of Rs. 7,29,40,308/- together with pendente-lite interest at the rate of 15% p.a. up to the date of decree.
