Delhi High Court
N.K. Sharma vs K.G. Arya on 21 August, 2003
Equivalent citations: 2003 VIAD Delhi 158, AIR 2004 Delhi 25, III (2003) BC 587, 106 (2003) DLT 670
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This appeal is directed against the judgment and order dated 10th April, 2003, of the Additional District Judge, Delhi in RCA No. 7/2002, whereby the learned Judge has dismissed the appeal arising out the judgment and decree dated 5th October, 2002, passed by the learned Civil Judge decreeing the suit while not allowing the appellant to lead evidence as defense had not been entered upon by the appellant within ten day of the receipt of notice under Order 27 Rule 3 CPC
RSA 125/2003
2. The brief facts of the case as noted by the Additional District Judge are as follows :
" the respondent/plaintiff filed a suit for recovery ors Rs.46,000/- under Order 37 CPC. That the plaintiff and the defendant had business in other dealings for the last more than 10 years. The appellant/defendant issued a cheque in his own hand writing dated 31.5.2000 for Rs.40,000/- drawn on Punjab National Bank, East Patel Nagar Branch, New Delhi in favor of the plaintiff. While issuing the aforesaid cheque the defendant also gave any undertaking dated 18.2.2000 vide which he undertook to pay the said sum in 4 installments of Rs. 10,000/- each starting from Feb. 2000 to 31.5.2000. That the defendant failed to make the payment of the agreed installments. He approached the plaintiff in the First week of June to wait up till first week of November, 2000 and also agreed that he will make the payment along with interest @ 18% per annum effective from 18.2.2000. That the defendant however, has failed to fulfilll his promise and commitment. The plaintiff deposited the cheque in the bank for encashment which was returned vide memo dated 20.11.2000 with the remarks 'insufficient funds'. Thereafter, also the plaintiff contacted the defendant and requested him to make the payment along with interest as agreed upon but the defendant instead of making the payment threatened the plaintiff with dire consequences. The plaintiff even got a legal notice dated 9.1.01 issued to the defendant but the defendant instead of making the payment sent a false, frivolous and vexatious reply.
RSA 125/2003
3. After service of summons under Order 37 CPC, the defendant had put in appearance on 6.8.01 through his counsel Sh. Suresh Sharma, Advocate. Thereafter summons for judgment were sent to the defendant which were served upon him on 13.10.01. The defendant however, filed an application for leave to defend the suit on 23.11.01. Along with the said application, an application under Section 5 of the Limitation Act was also moved and by the impugned judgment the said application has been dismissed and the suit was decreed."
3. The learned Appellate Court while dealing with the explanation given by the appellant returned a finding that the same was not sufficient and therefore, the application under Section 5 of the Limitation Act could not be allowed.
4. Learned counsel for the appellant submits that the notice dated 11th October, 2001, under Order 37 Rule 3 CPC was received by the appellant on 13th October, 2001. The notice merely states as under:
"Let all parties concerned attend the Court or Judge, as the case may be, on the 21 days of November, 2001 at 10.00 O'clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, intert names) for a sum of Rs.46,600/- and for interest and costs."
RSA 125/2003
5. He further submits that the notice does not state that the appellant was required to enter his defense within ten days of the receipt of this notice. He also submits that the appellant came to the court on 21st November, 2001, and thereafter, engaged an advocate. An application under Order 27 Rule 3 (5) read with Section 151 CPC for leave to defend was prepared along with an application under Section 5 of the Limitation Act. The same were filed on 23rd November, 2001. He further submits that there was no negligence on the part of the appellant. Although the requirement of law is that the defense should be entered into within ten days of the receipt of notice, the appellant could not do so since the notice itself did not clarify this position. He submits that there was no desire on the part of the appellant not to contest the suit or in any way prolong the matter or to cause any impediment in the disposal of the suit. It was a bona fide mistake which courts below ought to have taken into consideration. On the other hand, learned counsel for the respondent submits that the delay is not of two days but of forty days. He submits that the courts below have already taken a correct decision in not condoning the delay which is discretionary and that this court ought not interfere with the concurrent findings of fact.
6. Having heard learned counsel for the parties and having gone through the judgments under challenge, I am of view that the explanation given by the appellant for not entering defense within ten days of the service of notice appears to be genuine. No doubt ignorance of law cannot be taken as excuse but in the present circumstances where the notice itself is silent there is a possibility of confusion, which to my mind, in the facts and circumstances of the present case, can be taken to be genuine.
7. In this view of the matter, I set aside the order dated 10th April, 2003 in RCA No. 7/2002 as also the judgment and decree dated 5th October, 2002 in Suit NO. 32/2001 of the Civil Judge and remanded the matter for re-trial. Appellant may now enter defense and the suit be disposed of in accordance with law.
8. RSA 125/2003 is allowed. No order as to costs.
